Howard Berman

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I rise in strong support of H.R. 1417. The House passed a substantially identical version of this bill by a vote of 406 to zero on March 3. After making a number of amendments, the Senate passed H.R. 1417 on October 6 by unanimous consent. I think it is safe to say this bill is noncontroversial, and I ask all of my colleagues to once again support it. Certainly, my colleagues should be aware that the Senate amendments do make some significant changes to the bill as passed by the House. However, I believe those changes are noncontroversial. Further, our passage of Senate Concurrent Resolution 145 just minutes ago ensures that H.R. 1417 will now work as intended. Since H.R. 1417 already passed the House unanimously, I will spare my colleagues a detailed explanation of the provisions with which they are already familiar. In summary, H.R. 1417 significantly reforms the Copyright Arbitration Royalty Panel, or CARP, system. CARPs establish the rates, terms, and distribution of royalties generated by the half dozen statutory licenses that require copyright owners to make their works available to certain users under government-set rates and terms. There is widespread agreement that the CARP process is broken, and H.R. 1417 is designed to remedy its defects. After House passage in March, the Senate gave full consideration to H.R. 1417. Following a September markup before the Senate Committee on the Judiciary, the Senate passed its own amendments to H.R. 1417. These amendments largely leave intact the substance and structure of H.R. 1417. Rather than make wholesale changes, the Senate has made a number of focused amendments to several provisions of the House-passed bill. Many of these changes are distinctive improvements to which I can give my wholehearted support. Others may not reflect the exact policy choices I would prefer, but are still acceptable in the context of this bill. Perhaps the most significant changes made by the Senate amendments involve the interplay between the new Copyright Royalty Judges and the Copyright Office. The Senate opted to give the CRJs less autonomy and independence from the Copyright Office. For instance, the Senate amendments give the Copyright Office the right to review for legal errors CRJ interpretations of the Copyright Act. Further, the Senate amendments require the CRJs to obtain Copyright Office approval before correcting clerical technical errors in their issued determinations. While I reserve the right to revisit some of these changes in future legislation, I do not think they should prove fatal to the bill before us today. Another major change implemented by the Senate amendments to H.R. 1417 involves the discovery process that will be utilized in rate- making proceedings. In essence, the Senate amendments more severely limit the discovery that will be available to participants in rate- making proceedings. To my mind, these amendments represent a significant improvement over the analogous provisions in the House- passed version of H.R. 1417. These changes will further reduce the cost of participation in rate-making proceedings and thus advance one of the fundamental goals of H.R. 1417. I commend the Senate for making these improvements. In addition, the Senate amendments altered to a certain degree the ability of affected parties to object to negotiated settlements of royalty rates. In essence, the Senate amendments give all parties bound by proposed rates the ability to comment, but only allows participants in a proceeding to actually object to the proposed rates. The Senate amendments also make a number of other changes; but as they are primarily technical, they do not merit discussion in the full House. In conclusion, Mr. Speaker, I think H.R. 1417, as corrected by Senate Concurrent Resolution 145, will substantially improve the CARP process, and I ask my colleagues to support it. Mr. Speaker, I reserve the balance of my time.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I ask my colleagues to join me in supporting Senate Concurrent Resolution 145. It is a critical adjunct to H.R. 1417, the next bill to be considered on the suspension calendar today. S. Con. Res. 145 will correct a number of drafting errors within H.R. 1417 prior to enrollment of that bill. While many of these drafting errors are purely technical in nature, some may have significant negative repercussions. So it is critical that we concur in S. Con. Res. 145 now and thus ensure these errors will be corrected before H.R. 1417 becomes law. I am not going to bore my colleagues with an explanation of all the technical changes made by S. Con. Res. 145, but I would like to bore my colleagues with a few of the changes that have the most substantive effect. S. Con. Res. 145 ensures that H.R. 1417 will not create a major conflict with H.R. 4518, the satellite bill now pending before the Senate. Section 6(b)(2) of H.R. 1417 states that, notwithstanding any other provision of law, satellite license rate-setting proceedings will be conducted pursuant to the law, rules and practices in place prior to enactment of H.R. 1417. Thus, even if H.R. 4518 is enacted after H.R. 1417, section 6(b)(2) would take precedence over the provisions of H.R. 4518. Such an outcome would undo provisions of H.R. 4518 that created an expedited procedure for submitting and adopting voluntary section 119 rate agreements and thus undo language critical to the viability of H.R. 4518. S. Con. Res. 145 fixes this problem by ensuring that the process H.R. 4518 may later establish for determining satellite TV royalties will not be preempted by the terms of H.R. 1417. S. Con. Res. 145 also addresses the concern that the Senate amendments to H.R. 1417 will render it impossible for decisions of copyright royalty judges to take effect. The Senate amendments to H.R. 1417 state that the Librarian of Congress shall cause a copyright royalty judge determination to be published in the Federal Register following the Register's review of the CRJ's determination. However, the Register's review is both permissive and unlimited in time. If the Register never undertakes such a review, H.R. 1417 would appear to prohibit the Librarian from publishing the CRJ's determination. S. Con. Res. 145 addresses this problem by establishing a time frame within which the Register must complete its review for legal error. As a result, the Librarian will, after a date certain, be authorized to publish the determinations of CRJs. S. Con. Res. 145 addresses concerns that, as structured in Senate- passed H.R. 1417, the small claims process in distribution proceedings would not work. H.R. 1417 allows a distribution proceeding participant, who has a legitimate claim of $6 to avoid being forced into a small claims proceeding if he asserts a claim of $10,005. However, under H.R. 1417, that same participant cannot be sanctioned for bad faith inflation of a claim because the amount in controversy is less than $10,000. This anomaly allows participants to game the system and force full-blown distribution proceedings, exactly the problem small claim proceedings were designed to address. S. Con. Res. 145 addresses this problem by hewing to the approach taken in the House-passed version of H.R. 1417. This approach ensures that participants are forced into small claims proceedings if the contested amount of their claim is $10,000 or less. Thus, a participant who asserts a claim of $10,005 could still be forced into a small claims proceeding if other participants asserted they were willing to pay $6, and thus the contested amount is less than $10,000. If the participant attempts to game the system by asserting a claim of $10,007, then the participant would face fines for asserting in bad faith an amount in controversy in excess of $10,000. And, finally, S. Con. Res. 145 addresses one further substantive problem created by the Senate amendments to H.R. 1417. H.R. 1417 unintentionally removed the current legal requirement that voluntary agreements submitted to establish rates and terms under the section 112 compulsory license must include a minimum payment for uses of copyrighted works covered by section 112. S. Con. Res. 145 would ensure that H.R. 1417 does not alter this current legal obligation. In conclusion, Mr. Speaker, adoption of S. Con. Res. 145 is critical to ensuring that H.R. 1417, which we will take up next, will operate as intended. Thus, I urge its adoption by my colleagues. Mr. Speaker, I yield such time as he may consume to the gentleman from Michigan (Mr. Conyers), ranking member of the Committee on the Judiciary. (Mr. CONYERS asked and was given permission to revise and extend his remarks.)

Mr. BERMAN. Mr. Speaker, I yield back the balance of my time.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, today I join Representative Boucher in introducing the Patent Quality Assistance Act of 2004, PQA Act. Introduction of this legislation comes almost exactly one year after release of a Federal Trade Commission report entitled ``To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy,'' and several months after release of ``A Patent System for the 21st'' Century'' by the National Research Council. These reports both made a number of recommendations for increasing patent quality and ensuring that patent protection promotes, rather than inhibits, economic growth and scientific progress. Consistent with the goals and recommendations of those reports, the PQA Act contains a number of provisions designed to improve patent quality, deter abusive practices by unscrupulous patent holders, and provide meaningful, low-cost alternatives to litigation for challenging the patent validity. I am a strong believer that the prospect of patent protection promotes innovation. However, I also believe that the patent system is strongest, and incentives for innovation greatest, when patents protect only truly deserving inventions. When functioning properly, the patent system should encourage and enable inventors to push the boundaries of knowledge and possibility. If the patent system allows questionable patents to issue and does not provide adequate safeguards against patent abuses, the system may stifle innovation and interfere with competitive market forces. This bill represents our latest thoughts in an ongoing discussion about legislative solutions to patent quality concerns. We have considered the multitude of comments received on patent bills in years past, and acknowledge the problems to be difficult and, as yet, without consensus solutions. It is clear, however, that introduction of specific legislation focuses and advances the discussion. It is also clear that the problems with the patent system have become exacerbated, rather than dissipating. With or without consensus, Congress must act soon to address these problems. Thus, we introduce this bill at the end of this Congress with the intent of framing the debate going into the 109th Congress, and with every intention of passing legislation in the next two years. The bill contains a number of initiatives to improve patent quality and ensure patents are positive forces in the marketplace. Section 2 creates a post-grant opposition procedure. In certain limited circumstances, opposition allows parties to challenge a granted patent through a expeditious and less costly alternative to litigation. Sections 3 and 4 permit patent examiners, within a limited time frame, to consider certain materials submitted by third parties regarding a pending patent application. Allowing such third party submissions will increase the likelihood that examiners are cognizant of the most relevant prior art, and therefore constitute a front-end solution for strengthening patent quality. Section 5 addresses the inequitable incentives that exist between patent holders who indiscriminately issue licensing letters, and the parties who receive these letters. Patent holders frequently assert that another party is using a patented invention, and for a fee, offer to grant a license for such use. Current law provides no disincentive to indiscriminate and unfounded issuance of such licensing letters. Conversely, parties receiving such licensing letters have a strong incentive to pay up even if they believe they are not engaged in infringement. Once in receipt of such a letter, the recipient faces no good options. If he ignores the letter, the recipient may be liable for treble damages as a willful infringer. The recipient can avoid being found a willful infringer if he obtains an opinion from a patent attorney that the recipient is not committing infringement, but such letters frequently cost up to $50,000. A recipient cannot, however, file for a declaratory judgement of non-infringement unless the licensing letter creates a ``Case or Controversy,'' and of course these letters are typically drafted to avoid meeting this threshold. Section 5 addresses this inequitable situation. It ensures that recipients of licensing letters will not be exposed to liability for willful infringement unless the letter gives rise to a ``Case or Controversy'', and thus, allows the recipient to seek a declaratory judgement. Section 6 is designed to address the deleterious effect on innovation created by patent ``trolls.'' We have learned of innumerable situations in which patent holders, who made no effort to commercialize their inventions, waited in the shadows until another party had invested substantial resources in a business or product that may infringe on the unutilized invention. The patent troll then steps out of the shadows and demands that the alleged infringer pay a significant licensing fee to avoid an infringement suit. The alleged infringer often feels compelled to pay almost any price named by the patent troll because, under current law, a permanent injunction issues automatically upon a finding of infringement. Issuance of a permanent injunction would, in turn, force the alleged infringer to lose the substantial investment made in the infringing business or product. While we may question their motives, we do not question the right of a patent troll to sue for patent infringement, obtain damages, and seek a permanent injunction. However, the issuance of a permanent injunction should not be automatic upon a finding of infringement. Rather, when deciding whether to issue a permanent injunction, courts should weigh all the equities, including the ``unclean hands'' of the patent trolls, the failure to commercialize the patented invention, the social utility of the infringing activity, and the loss of invested resources by the infringer. After weighing the equities, the court may still decide to issue a permanent injunction, but at least the court will have ensured that the injunction serves the public interest. Section 6 accomplishes this goal. Section 7 provides a much needed fix for the inter partes re- examination procedure, which provides third parties a limited opportunity to request that the PTO Director re-examine an issued patent. The limitations on the inter partes re-examination process so restrict its utility that it has been employed only a handful of times. Section 7 increases the utility of this re-examination process by relaxing its estoppel provisions. Further, it expands the scope of the re-examination procedure to include redress for all patent applications regardless of when filed. Finally, Section 8 is similar to a provision in a bill we introduced during the 106th Congress. Section 8 addresses our concern that patents have been issued for the mere computer implementation of previously known inventions. The idea of implementing a method for doing business online should not, in and of itself, be sufficient to secure patent protection for that method of doing business. Section 8 creates a presumption of obviousness if the only ``novelty'' is in the fact that the method utilizes computer technology. My colleague from Virginia, Mr. Boucher, and his staff deserve the greatest measure of recognition for their hard work in developing this legislation. In addition, the chairman of the Subcommittee on Courts, the Internet and Intellectual Property, Mr. Smith, deserves credit for bringing these issues to the forefront with the numerous hearings on patent quality. Also deserving of thanks are the many constitutional scholars, policy advocates, private parties, and government agencies that contributed their time, thoughts, and drafting talents to this effort. I am pleased that, finally, a consensus has emerged among the various collaborators in support of the basic ``post grant opposition'' approach embodied in the legislation. This bill is the latest iteration of a process we started over 3 years ago. Though we developed this bill in a highly collaborative and deliberative manner, I do not maintain that it is a ``perfect'' solution. Thus, I will remain open to suggestions for amending the language to improve its efficacy or rectify any unintended consequences. As I have previously said: ``The bottom line in this: there should be no question that the U.S. patent system produces high quality patents. Since questions have been raised about whether this is the case, the responsibility of Congress is to take a close look at the functioning of the patent system.'' Patent quality is key to continued innovation. Thus, we must act during the 109th Congress to assure the highest level of patent quality.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, I rise today to ask my colleagues to join me in saluting my good friend, Mr. Art Ginsburg. On November 6, 2004, the Los Angeles Valley College will honor him at its annual President's Gala. Art is a successful businessman and respected community leader who selflessly devotes much of his time and resources to community, governmental, civic and charitable organizations. As the Vice President of the Los Angeles City Planning Review Board, he works hard to enhance the commercial areas of Studio City. He is a founding member of the Studio City Improvement Association and helped create its ``Sidewalk Walk of Fame.'' Also, Art has been an active member of the Studio City Chamber of Commerce for 47 years and he serves as a member of the Studio City Residents Association. A wonderful place to eat and one of the San Fernando Valley's famous landmarks is ``Art's Delicatessen and Restaurant'' in Studio City. It is a family run business that has been a favorite of many of my constituents since its opening in 1957. I know first-hand that, ``every sandwich is a work of Art.'' In addition to his business accomplishments, Art is a strong supporter of Los Angeles Valley College which he attended in 1956 and 1957. He is a member of the Board of Directors college foundation, the Patrons Association, and serves on the business liaison, executive council and scholarship committees. He has established a number of scholarships that have greatly benefitted many students. Art frequently sponsors campus activities by providing food from his Deli. Art and his lovely wife, Sandy, have three children and three grandchildren. Two more grandchildren are expected soon. Mr. Speaker, I ask you to join me in saluting my good friend Art Ginsburg and congratulating him on the honor being bestowed on him by Los Angeles Valley College.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, I would like to take this opportunity to congratulate the Republic of China on Taiwan on its 93rd National Day and to welcome its new Representative to the United States, David Tawei Lee, with whom I met just a few weeks ago. Both Dr. Lee and his wife, Chih Lin, know the United States well. Dr. Lee received both his Master's and Ph.D. degrees from the University of Virginia while Mrs. Lee received her MBA from the University of Maryland. Dr. Lee also served as a Research Associate at Harvard University while he was heading up the Taipei Economic and Cultural Office in Boston for three years. Both of the Lee's children were born in Washington, D.C. Dr. Lee's appointment to become Taiwan's representative to the United States follows a distinguished career with the Ministry of Foreign Affairs (MOFA) and the Government Information Office (GIO). From 1998 to 2001, he served as Taiwan's spokesman. In 2002, Representative Lee won the most distinguished diplomat award given by the Ministry of Foreign Affairs. The people of Taiwan and the U.S. share important values and have maintained a strong and dependable friendship over many years. Taiwan has transformed itself from a oneparty dictatorship to a vibrant multi- party democracy, enhanced and preserved human rights and civil liberties, and vigorously guarded the right to a free press. Its market-based economy is now the 126th largest in the world. Last year it was the 8th largest trading partner of the United States and was the ninth largest export market for U.S. goods. On its 93rd National Day, let us celebrate Taiwan's many accomplishments and extend a warm welcome to Dr. and Mrs. Lee.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, I rise today to ask my colleagues to join me in saluting Mr. Edward Kussman, a civil rights activist and a good friend, who is being honored on October 15, 2004, by the Fair Housing Council of the San Fernando Valley. Mr. Kussman, who moved to Pacoima in 1956, is a remarkable man with many accomplishments and I have been greatly honored to work with him over the last 20 years on many important community issues. For more than seven decades, Ed has unwaveringly fought to end racial and other forms of discrimination and to improve opportunities in education, housing and employment. He is a founding member of the Fair Housing Council of the San Fernando Valley and has been an active member for the past 45 years. He has also served seven consecutive terms as President of the San Fernando Valley Chapter of the NAACP, was President of the Pacoima Chamber of Commerce, served for 25 years as a board member of the San Fernando Valley Neighborhood Legal Services, was the Past President of Northeast Valley Health Corporation, and is currently the Commissioner of the Los Angeles County Commission on Aging. His civic involvement is as impressive as it is extensive. Ed began his fight against racial inequality in a time when African Americans were excluded from accessing many forms of employment and denied entry into public places. His fight for equal rights was instrumental in the state of California's passing the historic Rumford Act prohibiting discrimination in housing. His influence is far reaching and continues to play an essential role in the lives of community members. He is an influential member of my Senior Advisory Council and has been a trusted counselor to me on many important issues. Born in New Orleans, Ed attended Straight University, Louisiana Frank Wigins Trade Tech, and UCLA. He has taken an active part in his community and has earned many awards including Man of the Year Award from Beta Pi Sigma Zeta Chapter, the NAACP Freedom Award and Los Angeles's Urban League Award. Edward Kussman is married and has four daughters. Mr. Speaker and distinguished colleagues, I ask you to join me in saluting Edward Kussman for his impressive career, dedication to the people of California and his many years of making a difference.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, I rise to ask my colleagues to join me in saluting the San Fernando Valley (SFV) Sun, an important local newspaper in my congressional district. On October 25, 2004, the Sun will celebrate its 100th anniversary. The Press--precursor to the Sun--was the San Fernando Valley's first newspaper and is the oldest continually published newspaper in the Valley. Throughout its history, the publishers have been committed to serving the local needs of its readers and advertisers. Since 1904, the Sun changed names several times and altered its size and publishing schedule, but it has always been located in the City of San Fernando, the birthplace of the Valley. Also, it has always remained dedicated to informed, thoughtful and fair coverage of the issues most relevant to the lives of the residents of the northeast SFV. As the population of the San Fernando Valley grew--and more of its readers were Spanish-speaking, the newspaper began to publish a Spanish language insert, named El Sol. During the last century, the Sun has been an integral part of the history of the San Fernando Valley. In 1911, it actively advocated for San Fernando city-hood. Irrespective of the various owners, the Sun has continued the high journalism standards and moral philosophy set forth by the original owner, Herbert W. Brooks. Since 2001, the new owners-- Severyn and Martha Diaz Aszkenazy--have maintained these exemplary standards. They wisely brought in Diana Martinez (formally with KFWB and LA Media) to direct the editorial content. The staff won the ``Best Investigative News'' Award from New California Media in 2003 and recognition of its news service to the community from the University of Southern California in 2004. Mr. Speaker and distinguished colleagues, please join me today in paying tribute to everyone associated with the San Fernando Sun on this important anniversary. We wish owners, management and staff of the newspaper 100 more years of success.

Mr. BERMAN

Mr. BERMAN. Mr. Chairman, what is the procedure by which one can point out that none of the gentlemen from Indiana received asylum?

Mr. BERMAN. Mr. Chairman, it is already law that terrorists cannot assert asylum. That is the law. A balanced and sensible proposal to fix our broken immigration system involves better border security, it involves the U.S. Visit Program, it involves sensible reforms in the procedures, it involves combining watch lists. It does not require the gaming of the asylum hearing process in a way that would cause us to depart from the fundamental precepts this country has always had, that we are a refuge for true refugees fleeing persecution in other countries. The ``fixes'' in this process, in this bill, that the gentleman from New Jersey (Mr. Smith) seeks to strike, games the system against people who are true refugees. Please pass the Smith amendment.

Mr. BERMAN. Mr. Chairman, I have a parliamentary inquiry.

Mr. BERMAN. Mr. Chairman, my friend, the chairman of the Committee on the Judiciary, says this is a matter of security. The Bush administration and George Bush say this is a massively overbroad expedited removal expansion. The President of the United States in January of this year gave a speech where he said the vast majority of these people ``bring to America the values of faith in God, love of family, hard work and self-reliance.'' If this amendment does not pass, this bill, because a group of people in the majority party in a caucus led by the gentleman from Colorado (Mr. Tancredo) wants to glom their anti-immigration ideas onto a terrorism and intelligence reform bill, that these people will be deported, up to a million, without due process, without an administrative hearing, without a balancing process that deals with earned adjustment or with guest workers or with anything else. It is the forcing of an anti-immigration agenda onto an intelligence and homeland security reform bill. We are talking here about victims of trafficking, Cubans fleeing Castro, battered women eligible for VAWA protection. We are talking about people who are classic refugees who will be picked up in this process; they will never have a chance to assert their asylum claims, people who will be subject to torture. You can say you adhere to every convention in the world on refugees and on torture, but if you summarily allow low-level enforcement officers in the Immigration and Customs Enforcement agency or in the Border Patrol to pick people up, take them out of the country, not let them tell their families they are being deported, insisting that they prove their credentials by the documents they have on their body at that time, that means either legal citizenship or legal residents or being here more than 5 years, you are subject to deportation, immediately, summarily, without any chance for judicial review and administrative hearing, any process whatsoever. Please support the Smith amendment. It is very important.

Mr. BERMAN

Mr. BERMAN. Mr. Chairman, I yield myself 3 minutes. Mr. Chairman, we are about to embark on the debate on three amendments dealing with three provisions of this bill that are very important and I think the House should try to understand the context, so I would like to use this initial time just to sort of set the table. The majority in putting forth this bill on the floor used intelligence reform and the compelling and legitimate concern about terrorism to insert three obnoxious, overbroad and overreaching provisions that flagrantly violate our convention against torture, which the United States has signed and ratified, and threaten to send people who are likely to be tortured back to their countries that will torture them; to engage in a process that allows a massive deportation of people, having nothing to do with terrorism, who are in this country for less than 5 years, through expedited removal, in a fashion that will not allow them a hearing, this is section 3006, that will not allow them a hearing, that will not allow them to contact their families, that will require them to establish they are either here legally or have been here for more than 5 years by the documents on their person, and, if not, to be detained and immediately removed from this country, in total and in flagrant violation of existing processes, taking a legitimate idea of expedited removal at our points of entry and in establishing it to the country in its entirety throughout its interior and to anyone who is here less than 5 years. Then, finally, in section 307 to massively alter the procedures and tests for getting asylum in such a way as to fundamentally depart from this country's tradition as a haven for refugees and people fleeing because of a well-founded fear of persecution, based on their politics, their gender, their religion, their ethnicity. These are horrible provisions. They have nothing to do with terrorism. Now we have an amendment offered by the gentleman from Indiana after the White House counsel wrote the toughest letter we have seen saying the notion that America is going to send somebody back to a country where they are likely to be tortured is unconscionable, we do not support it, we do not ask for this provision. He offers an amendment, which is a smokescreen, a total smokescreen, that tries to pretend that we are getting out of this problem by making amendments to three sections, notwithstanding the fact that if his amendment were to pass and the Smith amendments that follow his amendment to strike sections 306 and 307 were to lose, every one of these problems would still exist.

Mr. BERMAN. Mr. Chairman, I yield for the purpose of making a unanimous consent request to the gentleman from Michigan (Mr. Conyers) (Mr. CONYERS asked and was given permission to revise and extend his remarks.)

Mr. BERMAN. Mr. Chairman, I yield myself 15 seconds. In response to the last speaker, he demonstrated why it is a smokescreen. The issue of criminal aliens is a serious issue which we should have to deal with; so they insert that into the Hostettler amendment. But what they do is leave a gaping loophole whereby a country that utilizes torture gives assurances to the United States and therefore gets back the person whom they are going to torture. Mr. Chairman, I yield 3\1/2\ minutes to the gentleman from Massachusetts (Mr. Markey).

Mr. BERMAN. Mr. Chairman, I yield 2 minutes to the gentlewoman from Texas (Ms. Jackson-Lee), ranking member of the Immigration, Border Security, and Claims Subcommittee.

Mr. BERMAN. Mr. Chairman, I yield myself the remaining time. I am going to vote against the Hostettler amendment because, number one, it is a smokescreen by pretending to fix 3006 and 3007, the amendments that will follow this amendment when we come back to the Committee of the Whole; and, secondly, because it has a glaring loophole involving assurances from the torturing country that they will not torture. That means it is still in violation of the Convention Against Torture. Members will decide how they are going to vote on that particular amendment. The point I want to make most of all is do not fall for the trap which is being set by this amendment that the Smith amendments to 3006 and 3037, that have nothing to do with terrorism and that allow for mass deportations with no due process and which fundamentally change our asylum laws, do not fall for the trap that by pasting the Hostettler amendment you have cured the defects in those provisions. Be sure to vote for the Smith amendments and against those provisions when they come up.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, I yield back the balance of my time.

Mr. BERMAN. Mr. Speaker, I ask unanimous consent that the gentleman from Texas (Mr. Gonzalez) be allowed to control 10 minutes of my time.

Mr. BERMAN. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I rise in support of H.R. 4518 and ask my colleagues to vote in favor of its passage. I am happy to join my friend from Wisconsin (Mr. Sensenbrenner), the chairman of the committee, the gentleman who rolled me yesterday, in supporting this legislation. This bill is a must-pass piece of legislation. Its core provision re- authorizes the statutory license found in section 119 of the Copyright Act which is due to expire on December 31 of this year. The section 119 enables satellite television companies to retransmit distant superstation and network signals to the subscribers who cannot obtain comparable signals over the air. Extension of the section 119 license is very important to many satellite TV subscribers who might otherwise lose access to a number of popular television stations. The section 119 license is also of great benefit to satellite TV companies as it provides them with the equivalent of a valuable government subsidy. It guarantees satellite companies the ability to retransmit copyrighted broadcast programming, without the permission of the copyright owners and to do so at a government set rate. I support this extension of the section 119 license despite my longstanding opposition to statutory licensing of copyrighted works. Section 119 was originally enacted in order to help satellite television become competitive with cable television which benefits from an analogous license. With 22 percent of the pay TV market, it appears that satellite television has reached that goal. However, expiration of section 119 without simultaneous expiration of the analogous statutory license for cable television may upset that competitive balance. When Congress revisits this issue in 2009, it may reach a different conclusion or even decide to do away with both licenses. Until then, however, we should strive to maintain a competitive balance. The legislation before us does far more than simply reauthorize the section 119 statutory license. It is a combination of two bills that emerged from the Committee on the Judiciary and the Committee on Energy and Commerce. As such, it is the culmination of a long, sometimes difficult but ultimately successful collaboration between our two committees. I commend the chairmen of both committees, the Committee on Energy and Commerce and the Committee on the Judiciary, for their steady and inclusive stewardship throughout this collaborative effort. I leave it to my colleagues of the Committee on Energy and Commerce to describe the provisions of title II which fall in their jurisdiction. However, I do want to express my support for title II and in particular the single dish requirement contained therein. This provision requires that satellite TV providers enable customers to obtain all local broadcast programming through a single satellite dish, rather than having to install two dishes. The one-dish requirement will prevent further de facto discrimination against broadcast stations carrying minority, religious, and public interest programming. As for title I, I am pleased most of all by its royalty provisions. These provisions represent a marked improvement over the provisions found in the Judiciary-reported version of H.R. 4518. The bill before us today does not mandate any increase in royalty rates. Nor does it establish a specific royalty rate for the retransmission of distant signals. Rather, the royalty rate will be set through adoption of a voluntary industry agreement, or in the absence of an acceptable agreement, by a copyright arbitration royalty panel. While I do not know its terms, I understand that a voluntary industry agreement on royalties has already been reached. EchoStar, DirecTV, the Satellite Broadcast Communications Associations, and the relevant copyright owners have written us a letter to this effect. The letter also expresses unequivocal support for the royalty provisions contained in the bill before us today. If no interested party raises a well- founded objection, the legislation directs the copyright office to expeditiously adopt the voluntary industry agreement. The adoption of this agreement would represent perhaps the least contentious establishment of section 119 royalties since section 119 was first enacted. All involved deserve a great deal of credit for reaching a mutually acceptable agreement in such a compressed time frame. Once again, Mr. Speaker, I note my support for H.R. 4518, as amended, and ask my colleagues to add their support. Mr. Speaker, I reserve the balance of my time.

Mr. BERMAN

Mr. BERMAN. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, I rise to express my strong opposition to the amendment offered by the gentleman from Idaho. This amendment has never been marked up in the Committee on the Judiciary. It comes out of right field, left field, whatever field. It has never been considered by the committee with jurisdiction over the Federal courts. In fact, the only process it received was a subcommittee hearing last year where the witnesses were split about its advisability. Let me talk about some of the reasons why I think this body should reject this amendment. The costs of implementing a three-way split of the Ninth Circuit are enormous and could not come at a worst time. The Administrative Office of U.S. Courts estimates start-up costs in excess of $131 million, incurring additional annual costs of over $20 million each year as a result of this split. The courts will be forced to incur these costs when they are in the midst of a budget crisis. The Federal courts have already engaged in one round of staff cutbacks. Late last month, the administrative office announced a 2-year moratorium on 42 Federal courthouse construction projects as a result of the hard freeze on the judiciary budget. The administrative office has indicated that it may need to start cutting more staff if the budget situation remains the same. The Ninth Circuit judges themselves are overwhelmingly opposed to splitting the circuit. In April of this year, Ninth Circuit judges voted 30 to nine against division of the circuit. In light of this overwhelming opposition from the affected judges, a split of the Ninth Circuit would constitute an unprecedented interference with the judicial system. Congress has never split a circuit over the objections of the affected judges. If the opposition of the judges themselves does not carry water, perhaps a long bipartisan list of other opponents will be more persuasive. California Governor Schwarzenegger, as the gentleman has acknowledged, wrote in April of 2004 expressing his strong opposition to this proposal. The American Bar Association, the California Academy of Appellate Lawyers, a group of prominent Republican and Democratic lawyers and a number of county and State bar associations all oppose this split. Split proponents have the burden of proving the advisability of a split; and in my mind, it is a heavy burden. They both must prove that the current Ninth Circuit does not efficiently and effectively serve the interests of justice and that a split would solve more problems than it would create. To date, the empirical evidence in support of this split is lacking. In fact, for each reason offered as a justification to split the Ninth Circuit, there is a compelling response that justifies an opposite conclusion. Some split proponents tout the common misperception that the Supreme Court reverses the Ninth Circuit an inordinate amount of the times. Based on this perception, they claim the Ninth Circuit is either out of touch with the rest of the country or issues an unusual number of bad decisions. The evidence does not support this assertion and, in fact, may lead to the opposite conclusion. For the past 3 years, the reversal rate of the Ninth Circuit by the U.S. Supreme Court has compared favorably with other circuits; but even if we did not like the Ninth Circuit decisions, the gentleman's amendment does not propose shooting the justices. These judges will still be sitting on circuit courts. So it does not even achieve the goal that many of its proponents, if not the gentleman himself, seek to obtain with this amendment. There was a reason why the leadership of the majority party decided to open up this bill for this nongermane amendment and no other nongermane amendments, and I would suggest it had nothing to do with judicial efficiency or effectiveness. It had to do with politics. It has been noted that due to the Ninth Circuit's size, panels rarely involve the same three judges. Proponents of the split argue that the shifting nature of panels leads to inconsistent opinions. However, it can be said that the shifting nature of panels contributes to the objectivity of decision-making and makes it difficult for any one bias or philosophy to predominate. Less charitably, it could be said that the very consistency of Ninth Circuit opinions, not their inconsistency, is what split advocates find objectionable. Split proponents note that the Ninth Circuit has almost twice as many judges as the next largest Federal circuit, serves the largest population and deals with the largest number of appeals. Split proponents cite these numbers to support the contention that the Ninth Circuit is overburdened and is simply too huge to operate efficiently. However, statistics belie those contentions. They support the opposite conclusion. These statistics show that in recent years the Ninth Circuit handled over 207 appeals per circuit judge. When compared to other circuits, these numbers put Ninth Circuit judges in the middle of the pack with regard to the number of appeals they handle annually. Ninth Circuit judges may not be the most efficient, but they are certainly not among the least. I am sure we will also hear a bit today about the length of time, in fact, we have heard that it takes the Ninth Circuit takes to decide individual cases. The truth is that the Ninth Circuit judges are remarkably quick at deciding cases following argument or submission. It takes the Ninth Circuit 1.4 months to file a decision following arguments, as opposed to the national average of 2.1 months. For submitted cases, it takes one-half month nationally compared with two- tenths of a month in the Ninth Circuit. Those who raise concerns about delays in case dispositions also offer no such evidence that delays are due to circuit size. In fact, vacant judgeships constitute a more likely explanation for any delays in overall case disposition. Proof for this conclusion can be drawn from the experience of the much smaller Sixth Circuit, which has a large percentage of judicial vacancies and the longest time, in excess of the Ninth Circuit by far, in case disposition among circuits. If delays in case disposition were the keystone for splitting circuits, we would start with the Sixth. Finally, and least credibly, some split advocates accuse the Ninth Circuit of being unduly activist. These folks believe a split would somehow curb this alleged tendency, or at least inoculate the carved- out 12th and 13th from the decisions of the old Ninth Circuit. I reject judicial activism as a sound rationale for splitting the circuits, or for any other congressional action against the courts. If judicial activism were valid grounds for restructuring the courts, we would have to reconstitute the current U.S. Supreme Court, which has displayed its own judicial activism in crafting its doctrine of State sovereign immunity. Because judicial activism exists in the eye of the beholder, it cannot be a sound basis for restructuring courts. In conclusion, we must ask ourselves whether the cure presented by this amendment would be worse than the supposed disease. The disruptions, costs, and uncertainty that would attend a split might turn it into a costly failure. Frankly, the best way for Congress to participate constructively in improving the Ninth Circuit would be to pass S. 878 without this amendment. The additional district and circuit judgeships this bill creates within the Ninth Circuit will help it get an even better handle on its caseload. Mr. Chairman, I reserve the balance of my time.

Mr. BERMAN. Mr. Chairman, I yield 5 minutes to the gentleman from California (Mr. Schiff).

Mr. BERMAN. Mr. Chairman, may I get a sense of how much time each side has?

Mr. BERMAN. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, I rise in conditional opposition to S. 878. The reason I would oppose this bill is if the amendment offered by the gentleman from Idaho is passed by this body. I firmly believe we should pass a judgeship bill, and I supported it, Senate bill 878, as it was reported out by the House Committee on the Judiciary. The reported bill created all new Article 3 judgeships requested by the Administrative Office of the U.S. Courts. As a result, it would provide critical assistance to many Federal district and appeals courts currently staggering under tremendous caseloads. As reported, S. 878 is largely noncontroversial and enjoyed bipartisan support at the House Committee on the Judiciary markup. In fact, if S. 878 were brought up on the Suspension Calendar, as it should have been, I have no doubt it would have passed on a voice vote. Since it is so noncontroversial, we might ask ourselves why the House's valuable time must be wasted debating S. 878 under a rule. Why are we not using this valuable time to deal with the more difficult appropriations or national security bills? The answer is that a decision has been made to turn this noncontroversial bill into campaign season cannon fodder. This noncontroversial bill comes before us on a rule in order to provide an opportunity to debate an amendment soon to be offered by the gentleman from Idaho. The tragedy is that this tactic may result in the adoption of a highly inadvisable amendment. An adoption of this amendment, which would split the Ninth Circuit Court of Appeals into three circuits, will signal the death knell for S. 878 in the Senate. I will discuss my reasons for opposing that amendment in some detail when it is offered, but I can state at this time that if this amendment were to pass, it would be the first time in the history of our Federal judiciary that we have split a circuit against the will of the justices of that circuit. If the amendment is adopted, S. 878 will die in the Senate. There is no question about that. I might also point out that S. 878, as it passed out of committee, while noncontroversial, failed to include any of the new bankruptcy judges that are very important to deal with the tremendous caseload problems in our bankruptcy courts. The Committee on the Judiciary stripped out all of the bankruptcy judgeships because the majority thought that requiring the Senate to pass the bankruptcy reform bill, which also contains authorization for those same judgeships, might be leveraged in the process. I think that is a strategy that is destined to fail and it is a failure in S. 878, in that the judges so desperately needed on the bankruptcy court are not included in this bill. Mr. Chairman, I reserve the balance of my time. Mr. Chairman, I yield 3 minutes to the gentlewoman from California (Ms. Lofgren), a member of the Subcommittee on Courts, the Internet, and Intellectual Property of the Committee on the Judiciary.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, I appreciate the gentlewoman yielding me this time, and I rise very disappointed in the rule proposed for the consideration of S. 878 and intend to vote against it and urge my colleagues to oppose it. This rule makes in order only two amendments, both offered by Republican Members. It rejects four other amendments, including one that I myself offered. There is no defensible substantive rationale for this decision. There is a political rationale that is barely defensible. While my amendment would have required a waiver, both amendments that the Committee on Rules chose to make in order also required waivers. While my amendment has not been formally considered by the Committee on the Judiciary, the committee has also not considered the amendment proposing to split the Ninth Circuit. The Committee on Rules has once again decided to stifle an open debate. To make matters worse, its rule furthers a partisan political objective to the detriment of an important policy goal. I think the American public deserves to hear a little about the amendments that the Rules Committee does not want debated. The amendment that I sought to offer would have provided parties in a court proceeding with the opportunity to petition for an appeal of a judge's refusal to recuse himself. The amendment would have left it to the discretion of the courts to decide the appropriate circumstances in which such petitions should be granted. Unlike the judicial misconduct statute, the recusal statute currently provides no opportunity to appeal a judge's refusal to recuse himself. My amendment would have simply brought the procedures for addressing recusal and misconduct decisions into line with one another. Chief Justice Rehnquist himself highlighted this statutory anomaly in a letter to several U.S. Senators. These Senators had expressed concern that Justice Scalia did not recuse himself from a case in which Vice President Cheney was a named litigant. While this case was pending, Justice Scalia had taken a duck-hunting trip with the Vice President. Not only did they hunt together for several days, but Justice Scalia had traveled with the Vice President aboard Air Force Two. In a public document explaining his refusal to recuse himself from a case involving his hunting buddy, Justice Scalia wrote that he did not believe ``his impartiality might reasonably be questioned.'' In commenting on Justice Scalia's decision, Chief Justice Rehnquist noted, ``there is no formal procedure for a court review of a decision of a justice in an individual case.'' My own feelings about the propriety of Justice Scalia's refusal to recuse himself are not important. What is important, however, is the opinion of the American people. The efficacy of our court system depends entirely on the perception that the courts will administer justice impartially. If the courts lose the trust of the people, they lose their only real power. Reasonably or not, many folks around the country did question whether Justice Scalia could be impartial in a case involving a hunting buddy. It is clear that Justice Scalia's declaration of impartiality did not, in and of itself, put these questions to rest. To the extent these questions persist, our court system suffers. The amendment I wanted to offer would have gone a long way to addressing this problem. If this amendment had been the law when Justice Scalia refused to recuse himself, the litigants in the Cheney case could have petitioned the Supreme Court to review Justice Scalia's decision. Dismissal of that petition by a panel of justices would have gone a long way to quelling questions about Justice Scalia's impartiality. Unfortunately, without such review, those questions persist; not in my mind because my guess is Justice Scalia could have gone duck hunting with my colleague from California (Mr. Waxman), and he would have still ruled on Vice President Cheney's side of that case. The thought of Justice Scalia and Congressman Waxman duck hunting together is an interesting one. Without such a review, the questions persist in the eyes of the American people. Their persistence rots the foundation of our judicial system. I presented my amendment to the Rules Committee because we must act before further questions arise and the public loses more confidence in the judiciary. Apparently, the Rules Committee is less concerned about this crisis in confidence than about the prospect of an uncomfortable debate. In addition, a number of other amendments that were offered in the Rules Committee were denied: one dealing with the issue of cameras in the courtroom; one with the absence of this bill to provide the bankruptcy judges that are needed in our Federal bankruptcy system; a third dealing with the loss of COLAs by judges during the years that Congress did not pass the COLA increase for itself and the Federal judiciary, an issue which definitely impacts on the ability of the Federal courts to attract the best possible candidates for the Federal judiciary. What it did allow was an amendment proposing to split the Ninth Circuit, at tremendous cost, against the opposition of the overwhelming majority of the Ninth Circuit justices, into three different circuits. I vigorously oppose that amendment. I will not use this time to speak on that amendment. I will speak on it when it comes up. My only point in mentioning that is one very controversial amendment that required a waiver was allowed by the Rules Committee; three other amendments which may have also been controversial and required the same kind of a waiver were denied by the Rules Committee. I think that makes for an unsatisfactory rule, and I urge opposition to it.