The Food and Drug Administration has issued its January 20, 2012 weekly sampling update on imported and domestic orange juice products that may be contaminated with the fungicide carbendazim. FDA states that based on the Environmental Protection Agency's conclusions from its preliminary risk assessment, consumption of orange juice with carbendazim at the low levels that have been reported to date does not raise safety concerns. (Sampling and testing of imports at the border began on January 4, 2012, with FDA planning to refuse any imports that tested for carbendazim at 10 ppb or more. FDA had also provided rules for exempting manufacturers from testing.)
EMI’s Capitol Records asked for a preliminary injunction against ReDigi, the “used” digital music reseller, telling U.S. District Judge Richard Sullivan in New York that ReDigi doesn’t fall under the first-sale doctrine and is misleading the public about the legality of its service. “The ‘used’ music files ReDigi markets, however, are not secondhand, scratched CDs that physically pass from one user to another, but pristine digital files that ReDigi reproduces, stores and distributes without authorization,” EMI said. The U.S. Copyright Office itself has concluded the first-sale doctrine “does not apply to digital transmissions, which by their very nature do not involve the physical transfer of any material object,” the filing said. ReDigi’s video tutorial on its website acknowledges that it has to upload users’ files to offer them for resale to other users, EMI said: “Uploading, by its very nature, can only be accomplished by making an unauthorized copy of the original user’s track. … The user does not ’sell’ that original track but merely agrees to its deletion after it has been duplicated in a copy and that copy transferred, by ‘upload,’ to the ReDigi service.” It’s irrelevant whether the uploading user “simultaneously or subsequently” deletes the file, because “the Copyright Act does not excuse unauthorized reproduction simply because the infringer chooses to destroy the source copy.” EMI used an analog example to make its point: If one person “owned a print of a photograph, allowed the second individual to make a digital scan of it, and then immediately threw the original print into the fire, no one would suggest that the first individual had ’sold’ his print to the second individual.” ReDigi also fails the first-sale test because it’s not the “owner” of the tracks it uploads, and because it doesn’t have the copyright holder’s authorization, “the copies it holds on its ‘cloud’ are not lawfully made copies either,” EMI said. The label also said ReDigi’s streaming of 30-second preview clips to users and display of album artwork constitute infringements. ReDigi had already told Sullivan that the preview clips and artwork are provided by an authorized third-party source “pursuant to license,” and that EMI has a “profound misunderstanding” of the factual particulars of its service (WID Jan 23 p5). Because ReDigi claims it erases files as it transfers ownership from one user to another, “the chain of infringing copies itself is in constant flux,” EMI said: “It thus becomes tremendously difficult to monitor ReDigi’s inventory of files constantly to keep tabs” on what’s being uploaded and downloaded. Without an injunction, EMI won’t have “even a fair chance” of understanding the damage to its business from ReDigi’s service. The label scolded ReDigi for claiming on its website that it “gives back to artists and labels through generous payments with every track sold,” when in fact “Capitol has received no compensation” for its tracks posted on ReDigi. One question EMI’s filing appears to raise is whether ReDigi has found a loophole in the licensing terms governing the songs that it will accept for upload. ReDigi said in its initial answer to EMI, which had the same date as EMI’s request for an injunction, that contrary to EMI’s assertion, it only accepts songs downloaded from iTunes for upload to its cloud and that it’s not violating any terms attached to iTunes downloads. EMI’s initial complaint said Amazon MP3 was “likely the origin of many” tracks on ReDigi, and that Amazon terms “expressly” prohibit transfers of the sort that ReDigi facilitates. In its motion for an injunction, EMI again said ReDigi “encourages those users to violate the terms of certain of their original vendor agreements, such as those imposed by Amazon.com,” and in another reference said “vendors like Amazon … provided those files to users with carefully stated restrictions against redistribution.” EMI’s filings don’t appear to allege any specific violation of iTunes terms by ReDigi, citing Apple’s digital music platform only as a legitimate distributor whom ReDigi is undermining. Sullivan told EMI in a Friday order that it must respond to ReDigi’s letter requesting a pre-motion conference by Tuesday, and that ReDigi must answer EMI’s injunction request by Friday. The judge scheduled a hearing on EMI’s request for Feb. 6, and said he'll consider ReDigi’s summary judgment motion there as well.
The International Trade Administration has issued Federal Register notices on its recently initiated antidumping and countervailing duty investigations on utility scale wind towers from China and Vietnam (A-570-981, A-552-814), and C-570-982). The ITA will determine whether imports of utility scale wind towers from China and Vietnam are being, or are likely to be, sold in the U.S. at less than fair value, and whether manufacturers, producers, or exporters of utility scale wind towers in China receive countervailable subsidies.
This is a reminder that the U.S. Harmonized Tariff Schedule will be amended for hundreds of World Customs Organization-recommended tariff changes on or about February 3, 2012. At that time, ITC will implement the "official" HTS in its entirety, with the WCO-recommended and other changes. In addition, the printed official 2012 HTS will be available from the Government Printing Office. In the meantime, the ITC has made an unofficial version of the February 3 HTS available on its Web site "early," for HTS Chapters 1-97.
The FCC got lots of credit last week from President Barack Obama for putting an end to 190 regulations during his administration (CD Jan 19 p11). With regulation expected to be a big issue in the 2012 presidential race, a review of the record shows that dropping many of the regulations was little more than a clean up operation. The regulations the FCC cut are listed in a November document prepared by the FCC, the Preliminary Plan for Retrospective Analysis of Existing Rules. Among those listed are the Broadcast Flag rules, which were overturned by the U.S. Court of Appeals for the D.C. Circuit. Eight of the regulations implemented the Public Utility Holding Company Act PUHCA of 1935, which had already been replaced by a new set of regulations when a new version of PUHCA was approved in 2005. Another 13 involved a mechanism for TV stations to allege that a satellite operator retransmitted their signals in violation of Section 325(b)(1) of the Communications Act. But TV stations were only allowed to file complaints through Dec. 31, 2001, and none are pending from that time period. Another regulation cited was a rule requiring backup power for wireless facilities -- a mandate scuttled by the FCC under former Chairman Kevin Martin after the Office of Management and Budget found the requirements were overly burdensome.
U.S. Customs and Border Protection has posted a January 2012 update on its progress with various Automated Commercial Environment (ACE) capabilities and other projects, such as Document Image System (DIS), PGA Message Set, e-Manifest: rail and Sea (M1), ACE Truck, Automated Export Processing etc. With this update, CBP states that in addition to allowing the trade to electronically transmit document images and associated data to CBP, the DIS will support processing single transaction bonds submitted by the trade. CBP also notes that as of January 2012, it deployed M1 at 17 ports (from 13 ports in December 2011).
Mexico's Diario Oficial of January 19, 2012 lists notices from the Secretary of the Economy as follows:
The International Trade Administration is publishing notices in the January 20, 2012 Federal Register on the following AD/CV proceedings (any notices that announce changes to AD/CV duty rates, the scope, affected firms, or effective dates will be detailed in another ITT article):
Mexico's Ministry of Economy has published the preliminary determination in its antidumping investigation on imports of chicken leg quarters from the U.S., regardless of country of origin. Mexico preliminarily determined that sufficient evidence exists to support that imports of the products under this investigation were conducted under conditions of dumping, resulting in their increased participation in and causing injury to the domestic market and production of chicken leg quarters.
The International Trade Administration is publishing notices in the January 19, 2012 Federal Register on the following AD/CV proceedings (any notices that announce changes to AD/CV duty rates, the scope, affected firms, or effective dates will be detailed in another ITT article):