Agenda F-18 (Appendix C)
Rules
September 2000

        The following summary outlines considerations underlying the recommendations of the advisory committees and the Standing Rules Committee on two topics that raised significant interest, although they were not controversial. A fuller explanation of the committees' considerations was submitted to the Judicial Conference and is sent together with this report.

Federal Rules of Civil Procedure

I. Abrogation of Copyright Rules

A. Brief Description

        The Copyright Rules are set out in 17 U.S.C.A. following § 501. The rules were written in accordance with the 1909 Copyright Act. They deal with prejudgment seizure of copies alleged to infringe a copyright.

B. Arguments in Favor

        The Copyright Rules have not been changed to reflect inconsistent provisions in the 1976 Copyright Act. They do not conform to modern concepts of due process. An attempt to abrogate the rules in 1964 was halted because Congress was considering a thorough revision of the copyright laws that was eventually enacted in 1976. Since then, the overwhelming practice of the bench and bar has been to neglect the Copyright Rules and rely on the Federal Rules of Civil Procedure in impoundment proceedings. Under the proposed amendments, Civil Rule 65 would make it clear that the rule covers these proceedings.

C. Objections

        The committee is unaware of any objections to the proposed abrogation. At the request of Congressman Howard Coble, chairman of the House Judiciary Subcommittee on Courts and Intellectual Property, the rulemaking process was delayed for one year in order to ensure that the proposal would not interfere with pending copyright legislation and ongoing United States multilateral treaty obligations, which were aimed at fostering stronger international enforcement of copyright laws. During the one-year delay, Congress acted on the pending measures.

D. Rules Committees Consideration

        The rules committees concluded that nothing in the proposed amendments would hinder the vigorous enforcement of the copyright laws. Impoundment may still be ordered on an ex parte basis if the applicant makes a strong showing of the reasons why notice is likely to defeat effective relief. But the proposed changes would eliminate the concerns that the rules may be invalid and will help ensure that the United States is in compliance with its international obligations.

Federal Rules of Civil and Bankruptcy Procedure

I. Civil Rules 5, 6, 77 and Bankruptcy Rules 9006 and 9022

A. Brief Description

        The proposed amendments to these rules would permit the service of papers and the transmission of court notices by electronic means upon the parties' consent.

B. Arguments in Favor

        The proposed amendments would remove rules-related impediments that prevent willing parties and courts from using modern communication systems and other technological advances during litigation.

C. Objections

        There was virtually no expressed resistance to the proposed amendments. Several commentators advocated quicker adoption of technological advancements. They would eliminate the need for parties' consent and require parties to serve and accept papers by electronic means.

D. Rules Committees Consideration

        The rules committees found that the experiences and the technological expertise of the bench and bar were too disparate at this time to mandate uniform, automated procedures. Until more widespread familiarity and expertise with technological advancements are shown, the committees are persuaded that amendments in the rules to account for technological changes should proceed deliberately.