Allied Telesis @ Yokota Rocks/Sucks

From the Wall Street Journal December 22, 2009.

Apple TV-Service Proposal Gets Some Nibbles

By SAM SCHECHNER And YUKARI IWATANI KANE

 

CBS Corp. and Walt Disney Co. are considering participating in Apple Inc.’s plan to offer television subscriptions over the Internet, according to people familiar with the matter, as Apple prepares a potential new competitor to cable and satellite TV.

The proposed service by the maker of iPhones and iPod music players could, in at least some scenarios, offer access to some TV shows from a selection of major U.S. television networks for a monthly fee, according to people familiar with the discussions. Apple is pushing to complete licensing deals and hopes to introduce the service in 2010, some of those people said. It is unclear whether any networks have signed on yet.

Spokespeople for Apple, CBS and Disney declined to comment.

If Apple signs up enough networks to launch a viable service—still a very big if—it could ultimately alter the economics of the television business. The service could undermine the big bundles of channels that cable, satellite and telecommunications companies, including Comcast Corp. and DirecTV Inc., have traditionally sold in packages to subscribers.

Comcast declined to comment. A spokesman for DirecTV said, "It’s difficult to gauge how competitive they will be without seeing the packaging, presentation and execution."

Apple is dipping its toe into the cable subscription model, but still needs to sign up networks, Sam Schechner reports on the News Hub panel.

Journal Community

• Vote: Can Apple succeed with TV?

The video strategy is part of Apple’s plan to overhaul its iTunes store. The store currently sells downloadable music, video and applications like games, entertainment and productivity tools for its touchscreen devices, like the iPhone and iPod Touch. Apple recently bought music-streaming service La La Media Inc. as part of its plan to offer consumers more ways to access and manage their music purchases, according to people familiar with the situation. Similarly, the TV subscription service would be in addition to the way Apple sells individual TV shows.

Apple is revamping iTunes as it finalizes its plans for a tablet device, which is meant to be a multimedia gadget, according to people briefed about the product. The multimedia tablet is expected to be larger than an iPhone but smaller than a laptop computer. People briefed by Apple say the company is aiming to launch it by the end of March.

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Apple is preparing a potential new competitor to cable and satellite TV.

Apple faces an uphill battle assembling a critical mass of TV networks to sign up, a factor that could delay or scuttle a launch. A broad swath of media companies—including News Corp., Viacom Inc., Time Warner’s Turner Broadcasting and Discovery Communications Inc.—appear to be opposed to or leaning away from signing on, at least to Apple’s initial proposals, according to people familiar with the matter. It is unclear if NBC Universal, in which Comcast is buying a controlling stake, is interested.

As part of the Apple service, CBS is considering offering programs from both the CBS and CW networks, according to people familiar with the matter. CW, a joint venture between CBS and Time Warner Inc.’s Warner Bros., airs shows like "Gossip Girl" and "Vampire Diaries" that are among the most popular purchases, per episode, on the iTunes video and music bazaar.

Disney is considering including programs from its ABC, Disney Channel and ABC Family networks, according to a person familiar with the matter. Disney has in the past been among the first to jump into online video, including on iTunes. Apple Chief Executive Steve Jobs is Disney’s largest individual shareholder and sits on the company’s board.

In at least some versions of the proposal, Apple would pay media companies about $2 to $4 a month per subscriber for a broadcast network like CBS or ABC, and about $1 to $2 a month per subscriber for a basic-cable network, people familiar with the proposals said. Those amounts are in some cases much higher than media companies receive from traditional distributors. The question is whether selling fewer networks at higher prices is better business.

Apple’s TV proposal may be changing as the company woos networks, according to people familiar with the matter. An initial version of the proposal had envisioned selling access to advertising-free shows from a bundle of top cable and broadcast networks—the "best of television"—with a consumer price tag of $30 a month, according to people familiar with the talks.

Some media companies say the proposed Apple service could undermine the lucrative business of selling bundles of big and small cable networks to distributors like Comcast and Time Warner Cable Inc. That concern is less central to CBS, which owns few cable networks. But for companies with large cable-network portfolios, selling only some of those channels to Apple, even at inflated prices, could cut into revenue.

Some executives are also concerned that the Apple service wouldn’t include advertising, at least in some of Apple’s proposals. U.S. broadcast and cable networks sold $43.4 billion in ads in 2008, according to TNS Media Intelligence.

"You don’t want to shoot a hole in the bucket to create another revenue stream," one media executive said.

It is also unclear how many shows from each network could be made available through the Apple service. Networks’ rights to TV shows online are snarled in a tangle of licenses with the studios that produce them. It is possible some shows produced by outside studios for a network could end up left out of an Apple offering, according to people familiar with the discussions.

Apple’s initial proposals were reported in November by the Web site All Things Digital, which like The Wall Street Journal is owned by News Corp.

Even if Apple is able to launch the new service, it faces a good deal of competition. Movie rental company Netflix Inc. is expanding its customer base for its streaming video servicethrough partnerships with consumer electronics manufacturers and videogame console makers such as Microsoft Corp. and Sony Corp. Video site Hulu, which offers TV shows from several networks over the Web, is also looking at the possibility of launching a subscription service. Hulu, which is owned by News Corp., NBC Universal and Disney, has become the second-most popular destination for online video, after Google Inc.’s YouTube, with 657 million video streams in November, according to Nielsen Co.

Meanwhile, cable companies are rolling out their own services that put cable-TV shows online for existing subscribers, giving them more reasons to keep their subscriptions. Comcast brought out its system nationwide on Dec. 15, offering its subscribers online access to some programs from 27 cable networks. Time Warner Cable and Verizon Communications Inc. are testing similar offerings.

According to Adams Media Research, Internet spending on movies and TV shows is expected to more than double to $1.14 billion in 2010 from $472 million in 2008.

—Sarah McBride and Ethan Smith contributed to this article.

Write to Sam Schechner at sam.schechner@wsj.com and Yukari Iwatani Kane at yukari.iwatani@wsj.com

Systems Perform Flawlessly During Power Outage

posted 11/21/2009 by Allied Telesis Public Relations

When: 11/22/2009 – 11/28/2009

November 22, 2009  Yokota Air Base, Japan

Allied Telesis announced today that Telephone and Data systems operated at 100% capability during the scheduled base-wide power outage on November 21st.  Planned maintenance work on the power systems for the base resulted in power outages ranging from one to six hours.

“While we routinely face localized power outages, it is less frequent that we encounter base-wide outages.  The procedures and systems that we have in place worked flawlessly during this event.  The result is that every network node remained operational throughout the entire outage with no loss of service to customers”, says Bruse Green, Yokota General Manager.

While a small number of trouble calls were received during the outage, the source of the trouble for the customer was determined to be the lack of local power.  The most frequent source of calls were cordless phones that require local power for operation and DSL modems which also require local power for operation.

Having a ’standard’ telephone in the home will insure continuous access to the telephone network during a local power outage and is advised for emergency purposes.  For customers who want to ensure continuous access to the Internet during a power outage, they should consider using a Uninterruptable Power Supply (UPS) for their DSL Modem.

After reading the above article on the Allied Telesis Yokota Portal site, we figured that a general polling of our readers would best answer our general question.

On Saturday, November 21, aside from a loss of service due to home equipmet not having power, did you experience any outage of basic phone services and/or cable?

• No (44%, 23 Votes)
• Was not home for an extended period of time. (35%, 18 Votes)
• Yes (21%, 11 Votes)

Total Voters: 52

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In a move that could be considered ill conceived at best, Yokota is once again looking to bail out the failing AAFES sheltered telecommunications provider, Allied Telesis, with a substantial infusion of (brace yourself) US TAX DOLLARS via a possible major systems upgrade.  That right folks you read it here first.  Allied Telesis, a Japanese owned/operated company, is about to get bailed out of doing work they already contractually agreed to do and even submitted a proposal to perform.  Remember too this is the same company who was able to finally accomplish time-shifting capabilities via AAFES purchased aka Best Customer In The World Dividend funded time shifting servers.

Over the last year since we first wrote of 9-1-1 service outage issues, Yokota’s leadership has been hearing ever increasing complaints about spotty service ranging from spotty internet speeds to 9-1-1 services from the residents of Yokota’s East Side.  As the frequent rains have continued to pointed out, phone service to certain areas can go completely dead depending on the amount of rain received at any given time.  Rumor has it that even the hospital itself can experience the outages.

Unlike the rest of Yokota, the East Side is quite a different beast when it comes to the telecommunication systems.  For starters it has the oldest infrastructure on Yokota.  During the solicitation period Allied Telesis determined that East Side of Yokota would receive Fiber to the Home installations to be completed by them.  Their proposal to AAFES was subsequently reviewed and recommended for approval by the 374th Communications Squadron.  However, as typical in these situations, though there was a proposal submitted, the AAFES Performance Work Statement (PWS) is really the document that determines what is to be accomplished or not so it was easy for Allied Telesis to back out of their proposal.

Regardless of what is to come in the future, Allied Telesis is unequivocally responsible for all communication systems to and from Military Family Housing Units.  It is our understanding that even to this day, the memorandum of understanding between Yokota, AAFES, and Allied Telesis continues to state as such.

Below is extracted from the PWS:

In item 4, we see that Allied Telesis must integrate into the base DSN network.  In item 5, a definition of a Class 5 switching features is as follows:

Class 5 switch

The fundamental difference between a Class 5 and the other classes of exchange is that a Class 5 provides telephone service to customers, and as such is concerned with "subscriber type" activities: generation of dial-tone and other "comfort noises"; handling of network services such as advice of duration and charge etc. Specifically, a Class 5 switch provides dial tone, local switching and access to the rest of the network.

To clarify what a Class 5 switch is:

Class 5 exchanges were those to which subscribers and end-users telephone lines would connect.

In translation, Allied Telesis owns the lines and trunking between the MFH customer all the way to where they integrate into the base DSN network.  Regardless of what the memorandum of understanding states, the performance work statement is what they are contractually bound to.  So any outage between a MFH unit and where Yokota’s DSN network begin are all for Allied Telesis to own, repair, and replace 100%.  Should Yokota bail them out again, it would be arguable that the funds were misappropriated and should be subject to review by AFAA (Air Force Audit Agency).

To continue further, item 8 and 9 are still not being accomplished as Allied Telesis has yet to appropriately provide continuous support for the E911 capabilities for their areas of responsibility.  What this translates out to is that the Fire Department, Security Forces, and Hospital may not have the most current information available within their system for your particular phone number, such as location and/or name of resident.  Allied Telesis has not provided monthly data calls unless prompted and has, according to reliable sources, even gone so far as to say that it is not their job to provide a E911 capability that can interface with existing systems.  We have been told that getting a current copy of the database from Allied Telesis at regular intervals such as once a week to once a month has been problematic at best.

Some of the arguments about providing funding to improve the telecommunications structure center around the fact that Allied Telesis is not making much profit at all.  I have yet to see any indication that there has been an audit or a thorough review of Allied Telesis’s books let alone any true finding that shows just how much in the red or black they really are.  Heck, even to this day they still have not paid IP Triple Communications, the original phone provider who was shamelessly smeared in the Stars and Stripes by both AAFES officials and Allied Telesis managers, for services rendered.  It is shameful to think that as customers forced under this flim-flam company and protected by the AAFES might, should we not pay our bills on time our husbands and wives could be subject to punishment, but when an AAFES contractor does it, everyone claims innocence.

Anybody remember this article from the Stars and Stripes?

Phone-service bill disputed after outages

By Bryce S. Dubee, Stars and Stripes
Pacific edition, Sunday, October 5, 2008

YOKOTA AIR BASE, Japan — The former phone service provider for Allied Telesis at Yokota contends the recent disruption of base customers’ incoming calls was because Allied owed it money and not the result of “service problems,” as Allied initially told customers.

Carl A. Maybin II, president of Hawaii-based IP Triple Communications Inc., said Friday in an e-mail to Stars and Stripes that Allied has owed them more than $140,000 since January and that his company blocked incoming calls to Yokota customers because Allied wouldn’t pay the bill.

He also claims Allied didn’t pay for their total number of subscribers during the first year of the contract, and instead only paid for the agreed-upon 2,000-subscriber minimum.

Allied Telesis officials dispute Maybin’s claims and say they have filed a suit against the company, which they replaced with a new provider. Allied did not provide details of the lawsuit Friday.

The two companies signed a three-year contract in October 2006 for IP Triple to provide Voice over Internet Protocol phone service at Yokota. The contract came with the option of renewal in three-year installments.

IP Triple began blocking incoming calls at Yokota on Sept. 18. Callers receive an error message telling them that the number they were trying to reach was “unallocated.”

Larry Salgado, Yokota’s Army and Air Force Exchange Service general manager, said via e-mail that its communications contractor, Allied, submitted “trouble tickets” to IP Triple, who responded that the “problem was being investigated.”

Salgado said AAFES eventually learned that IP Triple had blocked the calls. He said IP Triple explained that blockage was a “business failure.”

Maybin told Stripes that they sent AAFES a notice about the delinquent bill last month, but received no response.

Salgado said AAFES was “not aware of any instances of problems with Allied payments to creditors or subcontractors.”

He also said that before the blockage began, Allied had been looking for a new carrier because of constant customer complaints about the phone service.

Allied intensified their search after the service was cut and hired a new company, which began providing service last week.

“Allied completed this process — which normally takes 60-90 days — in less than two weeks,” Salgado said of hiring a new carrier.

About 98 percent of Allied customers were able to keep their phone numbers, he said.

Allied and AAFES officials declined to name the new company, saying nondisclosure was due to legal concerns.

Because of the change in phone providers, the access number that callers from outside Yokota must use to contact Allied customers on base has changed to 03-4580-0135.

Maybin said in an e-mail Friday that he plans to continue pursuing the money he believes IP Triple is owed.

Please take a serious note of this date and time of the quote from the article:

Salgado said AAFES was “not aware of any instances of problems with Allied payments to creditors or subcontractors.”

Well, I wonder how in the world this email was circulating around the AAFES world(s) and they still were somehow unaware of the problem:

From: Xxxx Xxxxxx @iptriple.com
Sent: Wednesday, September 17, 2008 11:27 AM
To: Xxxxxxxxx, Xxxxx X. @aafes.com; Xxxxxxxx, Xxxxxxxx @aafes.com
CC: Xxxx Xxxxxx @iptriple.com
Subject: Yokota Voice Challenges
Aloha Xxxxxxxx and Xxxxx,

We have come up with the proposed solution for Yokota AB and its Voice challenges. The position of IP Triple is that we would either need direct billing to AAFES or the customer and it would cost one time $134,000.00. The ongoing costs would increase but would be absorbed by IP Triple as it would be for 2 PRI local circuits from NTT West as we discussed.

I would like to have a conf call to discuss this at your convenience.

**Content removed due to Allied Telesis & IP Triple Communications litigations**

I would like to propose a suggestion to the brain child of the tax payer funded telecommunication infrastructure upgrade in MFH.  How about when Allied Telesis makes good on all their bills and what is required under the contract…ie, what was shown above for the minimum requirements for phone services and below for television services before we even consider throwing them a bone.  Hey, they are charging the obscene rates and somehow still not making money because of their investment.

Speaking of investment too, “Where exactly did you do any investing?”  I mean after all, Allied Telesis attempted to lowball Americable Japan into a situation where they would practically walk away from the infrastructure they built out over years without adequate compensation.  When Americable decided to stick it to Allied Telesis and the telecommunications government representative at the meeting, who oddly had a very anti-Americable attitude to be frank, everyone started point fingers and working to figure out how they could just get away with blaming the other guy.  One could even argue that the telecommunications government representative’s mentality was biased negatively towards Americable Japan considering it was his dream to have this Triple Play Network thing on base.  To go even further back, he wrote the original performance work statement in a way that could force Americable Japan into a position where they could not bid due to the method they used to deploy services.  Shocking huh how his bias forced us all into this situation we are all in now.

I truly wonder if this telecommunications government representative is really the brain child for wanting to use our tax dollars to help out Allied Telesis and their supposed fiscal bind bull.  I mean it would seem likely that the potential for a unhealthy bias exists considering past actions.  I would contend that their fiscal bind is more attributable to the decline in their stock price rather than Yokota.  What was once a 4400 Yen per share stock in June 2004 is now hovering barely at 50 Yen per share and their market share has steadily declined since 2006 as their products have had less than sterling reviews aside from where they were the very lowest bidder on government contracts.

I guess I should draw this to a close and just ask for AAFES to demand that Allied Telesis to Man Up and meet the obligations that you signed up for…and for God’s sake…pay your stinkin’ bills so we do not have another service outage and oh yeah, stop begging for Yokota to help you out considering you are sucking the residents dry already.  You guys really ought to be ashamed of yourselves and for your conduct.

Here is some more information about Allied Telesis Yokota’s policies regarding copyright infringements.

AFN News Video on Illegal Downloads

DMCA Violations Frequently Asked Questions

Digital Millennium Copyright Act

Allied Telesis Yokota Acceptable Use Policy

I most sincerely hope that as Allied Telesis expands their channel content and drops their rates, I know that is wishful thinking.  If there was anything that AAFES ever has done well is find services that never go down in price, but rather can always go up.  This is self evident as AAFES promised Yokota residents that as Misawa and Kadena came online with their telecommunication services, that rates would drop.  Well, I am still waiting.

I believe that should Allied Telesis offer more content or rather a broader base of content that appeals more of the base population of Yokota, folks will cut back on illegal content downloads as their needs are being met.  Your casual downloaders tend to focus more on TV shows that are not available locally through AFN.  We all know that Allied Telesis does not carry any popular shows aside from what is on Sports channels, Discovery, and Comedy Central.  However, the syndicated shows on ABC, CBS, NBC, and USA are not present and thus prime targets for Yokota residents to download.  Should Allied Telesis start offering those channels, I am very confident that 1/4 to 1/2 of the illegal content downloaded through their system would immediately stop, after all some of us own a TiVo or some variation there of.

Just remember folks, regardless of your own personal opinion of file sharing, each time you perform a download you are running the risk of getting id’d by the copyright’s holder and run the potential of the associated civil liabilities.  To date, the legal cases have been predominantly civil, but criminal cases have occurred.  See below for more details.

First Digital Millennium Copyright Act (DMCA) Criminal Sentencing in California Involving

More than 4,500 Bootlegged Video Tapes

Three Others Have Recently Been Convicted for Aiding and Abetting the DMCA violation

SACRAMENTO United States Attorney John K. Vincent announced today that MOHSIN MYNAF, 37, of Vacaville, California, was sentenced by U.S. District Court Judge David F. Levi to 24 months in federal prison, a three year term of supervised release, a $1,600 special assessment, and also ordered to pay approximately $201,738.70 in restitution for engaging in six counts of criminal copyright infringement; six counts of trafficking in counterfeit labels; and one count of circumventing a technological measure that protects a copyright work (the Digital Millennium Copyright Act”). As part of his plea agreement, MYNAF agreed to the forfeiture of the equipment he used to commit the copyright violations, the forfeiture of $5,000, and the destruction of a substantial amount of property used to commit the copyright violations.

MYNAF pled guilty on March 28, 2002. On October 31, 2002, he also pled guilty to three additional counts, including Unlawful Use of A Means of Identification of Another Person; Possession with Intent to Use or Transfer Unlawfully Five or More Identification Documents; and Possession of Unauthorizedly Produced United States Government Identification Document. According to court documents, more than 4,500 bootlegged video tapes were found on December 5th, and 6th, 2001 during the service of five federal search warrants at three video stores (Video Stop, 1100 Marshall Road, Suite A, B, C, D, Vacaville, California; Videoland, 2147 North Texas Street, Fairfield, California; and Videoland, 128 Robles Way, Vallejo, California), a Vacaville storage facility rented by defendant MYNAF, and the defendant’s Vacaville residence. According to the plea agreement, at the MYNAF residence, agents found a movie videocassette reproduction lab with equipment hooked up to manufacture counterfeit movie videocassettes and labels. The equipment included approximately eighteen video cassette recorders, equipment used to bypass videocassette copyright protections, and printers. Defendant MYNAF utilized some of the equipment, including the SIMA Video Copy Master, to circumvent a technological measure that effectively controls access to copyrighted works. This case represents the first criminal conviction and sentence in California under the Digital Millennium Copyright Act (DMCA), which was enacted in October 1998. The provision under which defendant MYNAF was convicted prohibits anyone from willfully, and for purposes of commercial advantage and private financial gain, circumventing a technological measure that effectively controls or safeguards access to a work protected under the copyright laws. This is the first known DMCA prosecution targeting the circumvention of security measures placed on analog videocassettes. This case is only the second known criminal conviction in the country under the DMCA. The U.S. Attorney’s Office for the District of Nebraska successfully prosecuted an individual concerning a modified chip that circumvented a Sony software security measure to allow the Sony Playstation to play unauthorized copies of copyright protected Sony computer games. According to Assistant U.S. Attorney Mark L. Krotoski, who prosecuted the case, three other individuals have been convicted for their role in aiding and abetting MYNAF in violating the DMCA. On May 23, 2002, Mohammad Anwar Shafi pled guilty to one count of aiding and abetting the circumvention of a technological measure that effectively controls access to a copyrighted work. On June 18, 2002, Siriporn Rojanachaichain, defendant Mynaf’s wife, pled guilty to the same charge. On February 11, 2003, Shoaib Aziz pled guilty to the same offense. Their sentencing hearings are pending.

The case was investigated by the Federal Bureau of Investigation Fairfield Office with the assistance of the Vacaville Police Department and the Motion Picture Association of America.

DMCA Still Faces Its First Criminal Test
Criminal case will test Digital Copyright Act

By Jason Hoppin
The Recorder
March 27, 2002

Dmitry Sklyarov is free, but the law under which he was jailed remains.

The young Russian programmer turned cyber-cause celebre, arrested last year after a speech in the United States, has been home since he promised to testify in what was once, arguably, the Northern District’s highest profile case.

But nothing has changed about the underlying issues that so inflamed the cyberlaw community. On Monday, U.S. District Judge Ronald Whyte will put those issues under a microscope in a criminal case that should have a significant impact on creative industries’ drive to protect their products through legislation.

Elcomsoft Co. Ltd., Sklyarov’s employer when he wrote a program that unlocks Adobe Systems Inc.’s password-protected eBooks and PDF files, faces charges under the Digital Millennium Copyright Act, which outlaws the circumvention of encrypted digital works.

But Elcomsoft’s lawyers, along with Sklyarov’s attorneys and backed by a phalanx of law professors and public interest lawyers, will ask Whyte to dismiss the case for a number of reasons, including that Elcomsoft could not have understood the penalties it faced.

"The failure of a statute, particularly one that carries criminal consequences, to clearly define the conduct it proscribes and thereby ensnare innocent law-abiding individuals is the essence of constitutional vagueness," wrote Duane Morris partner Joseph Burton in asking Whyte to toss the case.

Two lawyers from the Northern District’s Computer Hacking and Intellectual Property Unit will counter each argument, ranging from broad constitutional issues that may require Whyte to divine the Founding Fathers’ intentions to parsing the specific language of the DMCA.

Whyte has already heard arguments on whether the government has the jurisdiction to prosecute a Russian company, but hasn’t yet ruled. Burton will be joined Monday by attorneys from Keker & Van Nest, who will argue that the prosecution violates Elcomsoft’s First Amendment rights, since computer code is considered speech. Keker partner Daralyn Durie, joined by associate Michael Celio, are appearing as of counsel.

A coalition made up largely of intellectual property law professors, led by Georgetown University’s Julie Cohen, submitted a rare amicus curiae brief at the district court level arguing that Congress overstepped its bounds when it enacted the DMCA.

And the Electronic Frontier Foundation, already an integral player in the case, was joined by a hodgepodge of public interest groups (including the American Association of Law Libraries) in submitting a brief in support of the Free Speech argument. (The EFF had lobbied Adobe to drop its support for prosecuting Sklyarov, which it eventually did following a barrage of protest.)

The case seems to go to the heart of the efforts of a variety of industries — movies, music, videos, books and software — to protect their digital products, which they argue is necessary to protect their livelihood.

Cary Sherman, general counsel of the Recording Industry Association of America, said his group has been following the case from afar.

"We’ve got our hands full with everything else," Sherman said. "The Department of Justice is doing a fine job. … I think that the government should win."

For EFF General Counsel Cindy Cohn, the case is about consumers’ fair use rights and the First Amendment — returning to people the ability to copy, print or otherwise manipulate a lawfully purchased eBook.

"Are we going to put people in jail who simply provide us the tools to get back what they took from us?" Cohn asks.

Also troubling for Cohn is the message sent by prosecuting someone for creating a technology. "I think any attempt to go after the technology is problematic," Cohn said, echoing the EFF’s argument that more cases like U.S. v. Elcomsoft, 01-20138, would chill innovation.

Sklyarov was arrested in Las Vegas by federal agents in July after giving a speech on eBook encryption at DEFCON, which bills itself as "the largest hacker convention on the planet."

He was the first person charged by a federal grand jury under the DMCA. The uniqueness of the case is underscored by the number and breadth of the briefs, which offer not just case cites, but virtual histories of the development of IP law in the late 20th century.

Elcomsoft, Sklyarov’s employer, sold what it called the advanced eBook processor (AEBPR) through a U.S.-based Web site. Very few of the programs were ever sold — court filings show an FBI agent contacted only three buyers, though possibly more.

A prison term is no longer an issue in the case, but Elcomsoft could face stiff criminal penalties. Sklyarov’s prosecution was deferred and will likely be dropped if he cooperates and, if necessary, testifies at trial. In the meantime, his lawyers are helping out with his employer’s defense.

"Once the prosecution of Dmitry was deferred, [Sklyarov's lawyers] were basically out of the case," Burton said. "We asked them to help out on the First Amendment issues."

Handling the government’s case are assistant U.S. attorneys Joseph Sullivan and Scott Frewing, who argue, among other things, that the defense is overstating the fair use issues in the case.

"The claims of Elcomsoft and amici that purchasers of eBooks require the AEBPR program to engage in fair uses are misleading," Frewing and Sullivan wrote, pointing to other, albeit more limited, ways for consumers to exercise fair use rights.

They also argue that since the AEBPR removes copyright protection to reveal a "naked" file, what Elcomsoft’s product produces then is not a copy, but a derivative work, the production of which is a right that lies solely with the copyright holder.

The government also urges Whyte to tread carefully in deciding whether all computer code, or just certain types, can be considered speech.

"The court should be reluctant to extend First Amendment protection to the act of trafficking in a functional product or good that merely acts as a machine," Frewing and Sullivan wrote.

The law professors’ brief, meanwhile, argues that since the DMCA was written into § 17 of the United States Code, headlined "Copyrights," that Congress enacted the DMCA under the authority granted it by what is known alternately as the Copyright or Intellectual Property Clause of the Constitution.

Courts have long held that Congress’ power is limited under the Intellectual Property Clause, and the law professors argue that with the DMCA, Congress overstepped its bounds. The government counters that legislative history shows that the DMCA was enacted under the Commerce Clause.

"Our argument is that you can’t use [the Commerce Clause] to do an end run around the Intellectual Property Clause," Georgetown’s Cohen said.

© 2002 law.com Inc. © 1999-2002 NLP IP Company

Due to a recent reader email and Allied Telesis Yokota customer, we decided to ask the community what they felt about the current cable offering.  In comparison to stateside prices and offerings, is Allied Telesis’s offerings appear to be more in line with HD price and channel offerings in the states.  As the AAFES contract stipulates that prices be comparable to what is provided in the states, it seemed to be a logical question to ask.

Do you feel that this site is still relevant to ongoing service issues at Yokota?

• Yes
• Yes, but it could use some work.
• No
• No, but I give you an "A" for effort.

View Results

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