Space Storm on the Hill

This year ProSpace's March Storm actually began on Feb. 26.

On the 2006
agenda for the intrepid citizen space advocates who blow through the halls of Congress every year at about this time includes presenting to federal lawmakers the ProSpace-authored SPACE Prize Act of 2006 (that's SPACE, as in, Space Prizes for the Advancement of Commerce & Enterprise), which would create and fund a National Space Prize Board, as well as lobbying Congress to establish the U.S. Air Force Research Laboratory Center for Entrepreneurial Space Access (ACES). Hot initiatives this season to advance commercial space. Brian Berger of Space News has an overview.

Thanks to ProSpace for the gusty efforts.
(Can I take off my winter coat and boots now? ;)

* * *
UPDATE: March 1 -- Jeff patiently corrects misapprehensions regarding March Storm contained in a Wired News article today, Space Hawks Chase Death Rays. Wired shoots at the wrong target here. As Jeff points out the "only element of the March Storm agenda that deals with military space is a request for the creation of the AFRL Center for Entrepreneurial Space Access to be a liaison between the entrepreneurial space community and the military on the development of responsive space launch systems, at the princely sum of $5 million in FY07. One might imagine that such systems could, theoretically, be used for future space weapons systems, but that's certainly not the thrust of the project."

Hulsey on IP Space

Got IP?

High-powered intellectual property lawyer
William Hulsey III, joined the ever-gracious Dr. David Livingston this Sunday (2/26) on The Space Show for a discussion about intellectual property rights on earth and in space. If you missed it, here's a quick summary. (I'm listening over lunch so please excuse any crumbs and spilled Snapple...)

Why do we need IP rights?

Bill began by referencing the software industry which has emerged in the last 50 years. We've gone from a world of wanting no protection to an area where IP is very important as one of the tools used to compete and establish new marketplaces. Another example: IP rights on the Internet. The Internet industry is still figuring out what it is and what its capabilities are. With space, we find ourselves in the very early stages with the establishment of a space economy. Governments are not the only vehicles or institutions, and when people make investments, they want intellectual property protection, particularly where technology is involved. People want the return on their investments to be assured and establishment of a set of rules by which to operate and conduct business.

In the late 1700 the US put in the constitution a patent and copyright system. In 1797 Thomas Jefferson became first commissioner of patents. With the establishment of a patent system, people know there is a set of rules that provides investors with legal instruments to protected their achievements.

The initial statutes and regulations are necessary for commercial activity to begin. Later judicial decisions interpreting statutes and modifications of statutes occur either at the same time or in response to industrial activities. It's like a board game. People who invest need to know the rules protect their investment.

What about space? Two areas of concern for Bill: One, the "mindframe" and age of the laws that presently exist. He cited Moon Treat and Outer Space Treaty which were established at a time when we "had not even reached the apex of the Cold War." The res communis approach to the establishment of existing laws for exploration and exploitation of space were of a different time. Now there is no Soviet Union; we also have half a century of fast-paced entrepreneurial activity and IP development which is not reflected in existing law.

Also, we have an industry that is changing dramatically -- an industry developed in response to Sputnik. The laws come from a different place and mindset.

Yes, there is
35 USC 105 which addresses extraterrestrial patents; also, the establishment of the EU patent will deal with inventions developed on a celestial body.

With regard to international patent, copyright and trademark laws, in last 20 years there has been a "substantial effort" to "harmonize the effects of international commerce here on earth" but "there has not been a focus on the application international property laws to a new space economy."

At the UN "the focus is not as entrepreneurally and small business focused as it could be."

But Bill does not think a separate set of laws is the answer.

Addressing IP as a way of promoting the establishment of space commerce and having a clear understanding of the rules of engagement relative to inventions is an important piece in the development of space commerce.

He referred to the idea of space as an "Eighth Continent" and spoke of the deep sea; but was not sure a whole separate body of IP law for space was necessary.

He outlined some hypotheticals regarding filing issues in connection with inventions on a space station.

A listener asked about patent trolls (individuals who derive patents for the sole purpose of generating revenue through license fees where they do not manufacture the patented product). There is change afoot.

When asked whether US IP law should be the model for IP space law, Bill spoke of an international economy leading the space economy. "It's a totally new day." He spoke of harmonization over pursing a U.S. agenda.

He noted the milestone hit last week of earth's population reaching 6.5 billion people and that the US makes up only 5 percent of the population. To pursue a US-centric agenda in protecting property rights does not make a lot of sense. What makes sense is that we have relationships with all the key players.

As to IP and Bush's vision, he said China, Japan, Europe, Australia, other counties have their own visions -- it's not just the US. Commercial collaboration is part of the vision; it is necessary to respect IP rights of companies that want to collaborate in the US and internationally.

He spoke of the Department of Defense's transformation regarding IP rights. In 2001, the DoD's report
Intellectual Property: Navigating Through Commercial Waters addressed how DoD could more successfully negotiate with commercial companies. In 1998, 15% of R&D in US was done by DOD, and private industry exceeded 70-80%. DoD realized private industry was getting in the way of Defense acquiring the sophisticated technology it needed for military purposes. As a result, there has been a change at DoD.

Bill answered a question about forums for redress of infringement claims. The forum depends on the infringement, where, any agreement between the parties, etc. This is a top issue.

What about landed (vs. intellectual) property rights? (Virgiliu Pop sent in that question.) Bill said he is not a real estate attorney but philosophically, within certain limitations, "to have landed property rights is certainly consistent with the promotion of space economic development."

Then our host mentioned that when he was trademarking "The Space Show" ((with the help of a lawyer of course) he found the process "really weird" and "irrational" and "very complicated." How do you learn more about IP?

Bill said it is amazing to see how much to government and IP organs have reached out. Two major pushes: an international focus on protection of IP rights. At same time, an international focus on educating people, particularly in the last five years, starting with the
World Intellectual Property Organization website which includes links to patents offices of all countries that are WIPO members. He also cited the European Patent Office; site and also recommended Stopfakes.gov , which is supported by Commerce & other interested federal agencies, and provides information on patents laws of other nations as well as the U.S.

And he spoke very highly of the
United States Patent and Trademark Office (USPTO), which he finds does a "tremendous job" on their website with support of individual inventors, not just big business like IBM or Microsoft. And he recommended signing up for free USPTO seminars, such as one on intellectual property and China March 2- 3, 2006 (in Atlanta) and other free offerings. If you want to learn about how to file for trademark and patent protection, "the tools, the knowledge are available." (Although he did not suggest you fire your IP lawyer.)

Finally, sounding like the IP lawyer he is, Bill concluded: good fences make good neighbors. Which I suppose is true in space too.

Listen to the show.


Buy space property book

In The Space Review this week, Jeff Foust reviews Virgiliu Pop's book, Unreal Estate: The Men Who Sold the Moon.

Get your copy of the book
here (Amazon), or here (Lulu, from which you can also buy Unreal Estate in e-book format for $5.99 which is a super idea, although I do like the hardcover on my shelf; you can also peek into a free preview).

By the way, this is the
press release for the book (also appearing, I see, in slightly rewritten form in today's SpaceDaily) in which I got quoted saying something for which I may have to apologize to my law school property professor. I mean, I didn't actually fall asleep during that class; I may have drifted off now and again...

As Jeff notes, (also see my post
here),Virgil's book is less a space law treatise and more of a historic overview of celestial property claims, dealings and profiteering. Pour yourself a chilled snake oil cocktail and dig in.


Updating Commerce's Space Office

Good to see an update on Space Politics about "reviving" the Department of Commerce's Office of Space Commercialization. (Clicking over there, I see the ol' office's website could use a bit of freshening up, too.)

But I'm surprised to hear that the office may focus on established rather than emerging space industries.

Jeff Foust, repoting from inside the beltway as usual, reports on buzz he's hearing that indicates "there may be more of a focus on existing service industries -- such as communications, remote sensing, and navigation -- than on some of the more emerging fields, like space tourism and other suborbital space applications."

This approach sounds off-base to me, and I fully agree with Jeff that "smaller, entrepreneurial ventures might benefit more from the office's promotional efforts than larger established companies, which can afford (and do) a lot more on their own -- especially if the office's budget is relatively small, as appears to be the case at least for FY06."

The Department of Commerce has housed some form of commercial space office since 1988. First was the Office of Space Commerce, which then became the
Office of Air and Space Commercialization (and the "air" apparently got in because Congress wanted to avoid confusion between commercial space and real estate). In 1996 the office moved to the Technology Administration; and most recently, in 2005, it ended up at NOAA. (And I don't know when Commerce officially dropped the 'air' or if it ever did.)

Meanwhile, whatever its name or location, if the hot commercial space developments of the past few years don't signal to this office it's time to focus attention on the entrepreneurial side of things, I don't know what Commerce could be waiting for.

For now, congratulations from SLP to new director
Ed Morris (who made the move from Orbital Sciences Corporation but still loves the initials OSC). (By the way, Jeff says he's not looking for a job offer and I would say the same for myself, except that I'm from NYC where we don't pass in advance on any tempting opportunity :)


Comments, compliments for FAA

XCOR has a lot of fans. It's a company used to praise.

And now, in its 17-page comment (dated Jan 31, 2006) in response to the FAA's
Notice of Proposed Rulemaking on Human Space Flight Requirements for Crew and Space Flight Participants, it was the rocket company's turn to give a little praise of its own. Before turning to its substantive comments on the proposed rules, XCOR took the opportunity to go on the record with these kind words for the FAA's space regulators:

We want to commend the FAA on this NPRM. There are numerous improvements, refinements, and clarifications to the draft guidelines. This is the best-crafted and most practical NPRM regarding launch vehicles that we have ever seen. Reading this NPRM, both XCOR reviewers were independently struck by the same pair of thoughts several times. "Hey, they listened to us," was followed by, "Hey, they heard us!" Reading the industry's comments on the draft guidelines, and then reading the NPRM, it is clear that in almost every case, the FAA listened to the industry's comments, understood the industry's comments, thought about the industry's comments, agreed with the industry's comments, incorporated the industry's comments into their thinking on the subject, and then recapitulated the industry's comments better than the industry had. This is excellent work.

The product of the process is very good regulation . . .. We are very pleased with how well this process has worked. If we were giving out letter grades to the FAA, this proposal would get an A-. . .. We know of no other government agency capable of demonstrating that level of excellence, and we commend the FAA for its work. . .. This NPRM is an example of government at its best.

The feds don't typically hear that sort of feedback from industry in public comments. (AST chief Patti Smith may have almost expected a dozen roses to go along with it. ;)

Randall Clague, government liaison for XCOR, then went on to flesh out the company's thoughts on "a few revisions" such as:

  • The definition of 'crew' needs to be addressed, so that non-safety-critical flight crew do not require inappropriate medical certification;
  • The regulations for environmental control need to be refined, so that systems which do not need both active monitoring and control are not required to be both monitored and controlled;
  • The exact language of the crew informed consent needs to be published; and
  • The Constitutional and statutory authority by which the FAA would prohibit space flight participants from carrying weapons on their flights needs to be explicitly cited and quoted.

    Interesting. (By the way, the company also "congratulate[s] the FAA for publishing this NPRM within twelve months of the CSLAA becoming law.") To read the full comment, and others submitted, go to the DOT's
    docket site, click on "simple search" and type 23449.

    noted a few initial comments last month; Jeff Foust also looked at some early comments here. Checking back in I see engineer Jon Goff of Masten Space Systems (not to mention his blog, Selenian Boondocks ;) has thoughtfully commented (with the reservation, "I wish we lived in a society where such regulation could be done by the industry itself, instead of being imposed by the government, but at least if we have to be regulated, I definitely prefer regulations that make sense, and don't require you to do things that aren't good ideas anyway." Yes.) Kent Ewing of TGV submitted comments; Aerospace Medical Association executive director Russell B. Rayman presented his view, and other folks commented so far.

    Remember, if you want to weigh in, the deadline is Feb. 27. (At the recent FAA conference SpaceX counsel Tim Hughes, for example, mentioned his company planned to offer some thoughts on the NPRM. I'll check back later to see what he and other interested parties may have submitted.)

    And if you don't comment, you can't complain.

  • 2.21.2006

    Protecting NASA's Trademarks

    Trademark law gurus, your space agency needs you. (Via SpaceRef)

    This NASA HQ solicitation for trademark services (posted Feb. 17) does not specify the marks with which NASA needs help but indicates the work is to include: filing and prosecuting of trademark applications including renewals, preparing amendments, briefs, appeals, requests, oppositions, petitions to cancel, and other documents as needed; conducting trademark and service mark searches, registration, use, and infringement opinions; monitoring trademark activities world-wide and in the US; notifying NASA of any trademark problems or concerns such as the potential trademark infringement of NASA trademarks.

    Filings will be in the US as well as Australia, Germany, South Africa, Canada, Japan, South Korea, the EC, Mexico, UK, France and Switzerland.

    * * *
    (I just recently happened upon some interesting regs --
    14 CFR Section 1221.1, sets forth the policy governing the use of the NASA seal, insignia, logotype, program identifiers, and flags.

    Also see the
    NASA Graphic Standards WWW Manual, the "comprehensive guide for the correct use of the Agency identification within and outside the Agency."

    I also can't help but think of the notorious
    NASA worm eradication, courtesy of former administrator Dan Goldin who went on a wiggly mission to delete the old NASA worm logo. Via NASA Watch.

    By the way, trademarks aside, some of NASA's would-be intellectual property the agency is happy to share freely -- basically, it's all the cool stuff: "NASA still images, audio files and video generally are
    not copyrighted. You may use NASA imagery, video and audio material for educational or informational purposes, including photo collections, textbooks, public exhibits and Internet Web pages." And we do.)


    Court Bounces SpaceX Suit

    For those of you who were wondering how SpaceX could get passed the issue of standing in its action against Boeing and Lockheed to block the ULA deal, the answer is, it could not.

    As Clark posted on
    HobbySpace this morning, the court has dismissed SpaceX's suit. After hearing arguments on the defendants' motions on Monday, Judge Florence-Marie Cooper of the District Court of the Central District of California ruled, "SpaceX lacks standing to assert claims related to contracts already awarded by the USAF. Other claims asserted by SpaceX, those based on anticipated events, are unripe. Because this action presents no Article III case or controversy, and because the Court lacks subject-matter jurisdiction over it, SpaceX's claims are dismissed."

    Here is the
    order granting defendants motions to dismiss (scanned in and posted by NASASpaceflight.com -- thanks guys!), which I just breezed through quickly.

    The court did not address the merits of SpaceX claims. (Nor, by the way, did the judge make note of whether a successful Falcon launch might have made a difference in the analysis or ruling, as some will no doubt wonder.)

    (Clark's Catch-22 equation: Unless you are competing against the monopoly you have no right to sue the monopoly for preventing you from competing against it.)

    In footnote 5 the court addressed whether it considered the action a "bid protest": The judge wrote, "At the hearing, SpaceX argued that the Court 'seem[ed] to buy into defendants' attempts to portray [its] case as nothing more than a bid protest.' Tr. at 5. This is incorrect. Had the Court viewed this case in a manner suggested by SpaceX's argument, the Court would have simply dismissed the action as within the exclusive jurisdiction of the Court of Federal Claims." [citation omitted]

    The motions or reply papers do not appear to be posted online, but here is SpaceX's
    first amended complaint (also via NASASpaceflight.com, thanks again ;) -- a mighty attempt by Charles Barquist and his team at Morrison Foerster for the plaintiff.

    The court also granted SpaceX leave to file a second amended complaint within 20 days although it is unclear how MoFo may overcome the Article III "injury-in-fact" deficiency here. We await the decision of Elon and his lawyers as to which options -- including refiling, appealing, etc. -- they might pursue.

    (In the meantime, the FTC, naturally, is far too busy making its own much-anticipated determination regarding the proposed ULA joint venture to take any notice whatsoever of any of this. Of course.)


    Forum on space tourism law

    From Space Law Probe's correspondent at the International Institute of Air & Space Law in Leiden -- yes, our intrepid, globe-trotting space law LL.M candidate D.J. Den Herder -- comes an announcement about the ECSL practitioners' forum on space tourism, scheduled for March 17 at ESA headquarters in Paris.

    D.J.'s Professor at Leiden, Dr. von der Dunk, is coordinating the trend-setting forum.

    Here are highlights from the draft program:

    Draft Programme ECSL Practitioners Forum 2006
    Space Tourism: Legal and Policy Aspects
    ESA Headquarters, Paris, 17 March 2006

    Morning Session: Surveying the Scene
    Chairman: Dr. G. Lafferranderie, ECSL Chairman

    Dr. F.G. von der Dunk, ECSL Practitioners Forum Coordinator

    Space tourism: lessons learned from the ISS: experience
    Mr. A. Farand, ESA Legal Department, Paris

    Is there a market for space tourism?
    Mr. Giget, Euroconsult

    Which vehicle for space tourism?
    Mr. C. Dubreuil, EADS Space

    Finance and taking of security
    Prof. Dr. H. Kronke, UNIDROIT, Rome

    The status of crews and passengers
    Prof. P. Achilleas, University of Paris XI, Sceaux

    Liability and insurance issues
    Mr. P. Montpert, AON, Paris

    The role of national laws in licensing companies and activities
    Prof. A. Kerrest de Rozavel, University of West Brittany, Brest

    Concluding remarks
    Dr. G. Lafferranderie, Dr. F.G. von der Dunk

    Here is the
    registration form.

    And I will note that a space tourism law forum would not have happened just a few years ago. Dr. von der Dunk's practitioner's forum is a good sign of an industry on the rise. Where space tourism takes us, international and domestic law is sure to follow. And sometimes, law will also lead. Expect much more of this sort of offering, from the world-class legal minds at Leiden, and many others.

    So . . . looks like our hardworking D.J. gets to go to Paris! Wish I could attend the forum. C'est la vie. But if we're lucky, perhaps D.J. will do some live or semi-live blogging from the city for us, oui?

    For now, get back to work on your thesis, D.J.! (And when you get a chance, remember to send more pictures!)


    Fed Chair's Space Lawyer Pal

    Space Law Probe is no Gawker, but some tidbits are too juicy to leave to the celeblogs.

    Like this. In a profile of the new chairman of the Federal Reserve, Ben S. Bernanke,
    Bloomberg.com makes mention of the fact that Bernanke was childhood friend and best man at the wedding of Houston space lawyer Nathan Goldman.

    Goldman, who we also know as author of
    Space Commerce: Free Enterprise on the High Frontier, among other writings, has good things to say about his powerful pal. And according to the story, "Bernanke and his friend Goldman played sports and spent hours poring over a baseball-statistics game they developed."

    With friends like Nathan, Ben's off to a stellar start.

    (The article does not note whether former fed chair Alan Greenspan also hung out with space lawyers.)

    Ann Ganzer Talks ITAR

    Dr. Livingston facetiously called ITAR "everybody's favorite topic." And with that, the host of The Space Show welcomed to his popular radio program last Sunday (Feb. 12) Ann Ganzer, the Director of the Office of Defense Trade Controls Policy (DTCP) for the Department of State.

    As her bio notes, Ms. Ganzer "and her staff work to resolve export-related policy issues that affect U.S. national security and foreign policy interests, particularly those related to foreign development of space systems, missile and space launch vehicle programs... From 1995 until 2003, when she took up duties as the Director of DTCP, Ms. Ganzer focused on satellite and space issues, first from a nonproliferation policy perspective, and more recently dealing with Munitions List export policy matters. She has participated in the negotiation of satellite technology safeguards agreements with Kazakhstan, Russia and Ukraine, and remote sensing agreements with Japan and Canada."

    (By the way, she's not a lawyer.)

    On the Show, Ms. Ganzer discussed ITAR and the policy interests and industry concerns associated with licensing under this scheme. I missed it live but last evening popped on the headophones for the playback.

    Someone asked a question I've had, "what evidence do we have that ITAR has actually intercepted or protected anything since 1999 and protected technology from getting to a rogue state" and "what can you cite as an ITAR success?" In response, regarding space-related export licenses, Ann said "no example is immediately coming to mind but I can tell you that we find cases all the time that have to be denied because of ineligible parties on the license" because "items are going to programs of concern or items are going to somebody who purports to be a legitimate end-user but is not." But she said she "could not give specifics right now."

    She talked of modernization of the computerized application process via
    D-Trade which will reduce the burden on export license applicants (and the government). Eventually, all basic exports applications will be filed electronically(right now only DSP-5 forms are). However, it will not reduce the amount of time needed to review the applications (which she estimated takes about 60 days).

    Also in terms of inefficiencies in the process Ann cited the problem of "staffing vacancies" which her office is "desperately trying to fill" (anybody looking for a job?)

    She recommended the
    Cox Commission report as "good bedtime reading" which will put you to sleep, and briefly recapped the saga which led to the law returning satellites to the State Department's munitions list.

    She talked of treatment of allies under Arms Export Control Act. And if you had any doubt that Operation Enduring Freedom and Operation Iraqi Freedom were the top priorities that Ann's department does their "darndest to get out of the door in 48 hours," as Ann indicates, indeed they are.

    She talked a bit about controlled technology in the context of sub-orbital space tourism. "We've had discussions with a couple of companies over what technologies are involved, what needs to be released to the paying customer and whether that's going to constitute an export or not but we are starting with the assumption that the technologies involved are controlled. So it's the exposure of that foreign person to that technology that would create a licensing requirement." Ann also said, "I hope that I can afford a ticket and take a ride one day because I would just love to!"

    She addressed complaints over compliance with ITAR. "People are afraid of us. They think we are going to say no. In most cases we say yes." She agreed the processing times are "longer than we'd like right now."

    With regard to what might be ITAR controlled on SpaceShipOne, she said "the propulsion system, some of the aviontics, some of the electronics."

    Dr. Livingston asked about the politics of the process. Ann said "it's really not political at all" other than with regard to foreign relations with a particular country -- here she cited as an example the embargo of munitions exports to Indonesia in connection with activities in East Timor -- but in terms of specific export licenses, "it's largely been what it is since 1935, this is how things get done, it's not subject to the changes of partisan politics."

    But she agreed that ITAR approval is based on a political agenda, saying there are some countries we don't cooperate with because of the foreign policy interests of the US. She cited the biggest prohibition against China stems from Tiananmen and is based on human rights concerns, "it has nothing to do with engineering." She added, this is not to say we don't have other concerns with China.

    She offered some tips about how to put together your application with the engineers as well as the policy wonks (like Ann) in mind so that its gets through the process faster. For example, to "lead your application with a nice plain English sentence telling me what you want to do" would be helpful. (Has she ever met a lawyer?) Commercial satellites will not take a lot of review, but new and innovative technologies nesessarily will take longer.

    My scratchy notes end there, but here you go,

    listen to the program (MP3).

    You may not like all the State Department has to say, but you gotta live with it. (For now.)

    * * *

    UPDATE: Over on
    Space Politics this morning Jeff Foust also posted about Ann's interview. And as our favorite inside the beltway guy correctly notes, "it is still up to Congress to provide any substantive reforms to streamline the process, particularly when dealing with friendly nations."


    Rocket Propellant Case Goes Boom

    For those of you rocket hobbyists who love the smell of APCP in the morning, or have been following the legal battle over the classification by the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) of the popular propellant for solid-propulsion model rockets, ammonium perchlorate composite propellant (APCP) as an "explosive" under 18 U.S.C. § 841(d), last Friday the US Court of Appeals for the District of Columbia Circuit found the bureau "has neither laid out a concrete standard for classifying materials along the burn-deflagrate-detonate continuum, nor offered data specific to the burn speed of APCP when used for its 'common or primary purpose.' On this record, the agency's decision cannot withstand judicial review."

    I did not see the briefs for the Bureau but I just read the appellate court's opinion --
    Tripoli Rocketry Association, Inc. and National Association of Rocketry v. Bureau of Alcohol, Tobacco, Firearms and Explosives -- and it appears quite well-reasoned.

    Thanks to Clark Lindsey, scientist and honorary appellate lawyer, for first covering this news on
    HobbySpace. ;)

    And Rand Simberg has a good essay, circa Fourth of July 2003, overviewing (and quite stylishly, at that) the issue of APCP regulation. And here is an Alan Boyle background article on point.

    For now, SLP lights off some digital fireworks in congratulations on good, tenacious lawyering by Egan, Fitzpatrick, Malsch & Cynkar, PLLC for the National Association of Rocketry.

    Keep in mind the appellate court here has sent the case back to the district court with instructions to remand the matter to the agency:

    "ATFE’s authority to designate deflagrating materials as explosives under § 841(d) is undisputed by appellants. But for the agency to so designate a particular material, APCP, it must establish that it is indeed a deflagrating substance. In this case, the agency has articulated no standard whatsoever for determining when a material deflagrates. We therefore remand the case so that ATFE may reconsider the matter and offer a coherent explanation for whatever conclusion it ultimately reaches. Because ATFE’s designation of APCP as an explosive was in place long before the present challenge, we will not vacate the designation without first affording the agency an opportunity to reconsider this matter. The case is hereby remanded to the District Court with instructions to remand the case to the agency for further consideration consistent with this decision."
    More litigation may follow.


    Fasten your seat belts...

    I share Jeff Foust's surprise that AP would run a story, which was in fact widely picked up across news venues, that Secretary of Transportation Norman Mineta commented at last week's FAA space transportation conference that the first commercial space passengers could liftoff by 2008. When I heard the Secretary's remark myself, I reported it here, but didn't consider it earth-shaking news. As Jeff noted, commercial space companies have already been saying that, and more. (Jeff did track down the DOT press release that sparked the mini news frenzy. Ah. But why did the Department itself consider the remark a big deal? Slow day in transportation news?)

    Sometimes media outlets hang on the words of a cabinet secretary as if he or she is a celebrity. And speaking of celebrities, during what has not been a slow news life for Britney Spears, I'm sure the young pop star Mom was not happy today to read as a top news story that the DOT chief himself
    publicly slammed her for driving a car with her infant on her lap rather than securing the baby in a child safety seat. Who knew Mineta would have input into that major calamity? (Actually, I have 5 young nieces and nephews and Auntie Jesse is all about kid safety, too.)

    Heads up space travelers. Mineta will be ready to give the first private space passengers his "green-light," as he has announced. But you better be ready to buckle those safety belts!

    Oklahoma Spaceport Enviro Assessment

    Just when you think you can relax over lunch with the latest enriching issue of The Space Review, someone like our own Sam Dinkin will stop by Transterrestrial Musings and graciously enough, post a big, inviting link to the Draft Environmental Assessment for the Oklahoma Spaceport -- yes, all 6.21MB or 253 pages of it -- for fans everywhere of exciting NEPA compliance... Thanks Sam!

    So far, I'm up to the executive summary, intro, page 4. (It could be worse. The EA does include a lovely picture of XCOR's Xerus on the cover page, as Sam said. I wonder if the multi-talented Jeff Greason took that picture? Not bad.) OK... someone please pass the vinaigrette?


    Negligence in Space

    No one looks forward to a sub-orbital or an orbital accident that results in the first personal injury or wrongful death lawsuit against a space tourism company.

    Unfortunately, one will happen.

    As I mentioned last week while quickie - blogging from the FAA's
    commercial space transportation conference in Washington DC, on the second day of the gathering, they sure did let the lawyers out.

    And one of the more engaging lawyers on Friday, (again, no offense to the good folks on the undazzling but nonetheless important NEPA management panel), rounding out the presentation entitled, "Space Toursim: Thought-Provoking Questions," was recreation and adventure sports defense counsel Tracey Knutson of Anchorage, Alaska's
    Knutson & Associates who stopped by to "make some noise in the background" about risk and negligence law in the adventure and recreation arena. And noise she made.

    First, (and see also Clark Lindsey's good
    summary of Tracey's talk and the whole panel) Tracey acknowledged that while she represents a lot of groups and individuals who like to engage in sports and activities widely considered "extreme," and has come to find the world "extreme" overused, based on what she has learned about space tourism, as she told this audience of folks involved in the emerging human space flight business, "you are the only guys who really are extreme."

    (Already she gets it.)

    Tracey wants space companies to think about the inherent risks of the activity they offer, as well as the risks to the company or operation that derive from that activity. Questions of concern include: If an accident occurs, will your company survive? Will your carrier drop you? Will your customer sue you?

    As yet we have no litigation stats with regard to the emerging space tourism industry (just wait), but according to Ms. Knutson, 60 to 65 percent of claims made against the recreation and tourism industry involve "some garden variety negligence."

    In light of that, Tracey gave a solid talk on the basics of
    negligence law and how to think through risk management. She outlined principles of duty of care, duty to warn, the reasonably prudent person standard, informed consent, contributory negligence, gross negligence and assumption of risk. She seemed to be channeling my torts professor from first year of law school. (Except that I was terrified of him; whereas Tracey is the kind of girl with whom you would not mind going heli-skiing. With your avalanche beacon on, of course.)

    Tracey did not tie in or reference the FAA proposed human space flight requirements (I'll have to send her a copy of the NPRM now that she's catching the space tourism bug and correctly finding that this all fits nicely into her well-established, extreme law practice ;), but she did list the fundamentals of risk and waiver documents under state law, and pointed out that these documents are contractual in nature and are not drafted by corporate counsel but by lawyers who specialize in her area.

    But she warned, "courts are extremely paternalistic" when they scrutinize waiver and release documents and go out of their way to shoot them down.

    (And keep in mind, although defense lawyer Knutson did not note it, high-powered counsel the likes of Hogan & Hartson's
    Peter Pettibone represents billionaire space tourists, which these days means those commercial customers flying Russian Federal Space Agency's Soyuz spacecraft. But of course legal and other circumstances for private space-goers will evolve, so be careful going up against lawyers who follow Peter.)

    (By the way, wait until the ABA hears about Clark Lindsey's proposition here: "Seems to me that the space tourism companies should require that a participant have his or her own lawyer co-sign the forms to make it very clear that the person was fully informed of the meaning of the legal language." Ahem. And he's not kidding. Well, we could explain to the physicists why we don't have this. But then we'd have to make them honorary lawyers.) (There. That ought to scare him off ;-)

    For now, assumption of the risk is among the first legal doctrines we naturally think of when it comes to people riding rockets and engaging in private sub-orbital as well as orbital activities. I'm no tort lawyer but I agree with Ted Frank on
    Overlawyered who, in connection with a well-publicized honeymoon kayak shark attack case, for example, comments, "For legal scholars: one asks whether anything remains of the doctrine of 'assumption of the risk' if a company called 'Extreme Sports Hawaii' can't invoke it without going through a trial and an appeal." One certainly might ask exactly that.

    Meanwhile, as Tracey notes, litigation in recreation is booming.

    And let's face it, to do business in America -- on the ground or in space -- is to assume the risk of getting sued.


    More from FAA/AST Space

    Quick update from day 2 of the AST shindig; interesting morning and there's still one more session I will catch before grabbing a taxi to Union Station for a choo-choo back to NYC... (Shame on me, came all the way to the nation's capitol for FAA's gathering on rocket business and I didn't fly!?) I see from his blogging that Clark was here yesterday, although I have not been lucky enough to catch up with him. (He's probably avoiding me because I would steal his laptop.)

    Today they let the lawyers out. First, Shana Dale, Esq., NASA's second in command gave this morning's keynote. She spoke of COTS and the ways it differs from typical NASA procurement (so far COTS was the hands-down star of this conference) and echoed some things Mike Griffin has been saying about hope for the success of commercial space transportation. Good to see her here.

    After a panel on NEPA (due respect to everyone working hard at compliance here, this is not everyone's all-time favorite topic), hot-dog lawyer Tim Hughes, chief counsel of SpaceX spoke about what he is calling a possible "perfect storm" that seems to be underway for commercial space. Tim points to the VSE, DOD's "operationally responsive space" line item, congressional and legislative developments on the personal spaceflight front which in turn have gone a long way to peak interest, and of course, COTS, which he called "a new world for NASA". It is clear, the industry is gaining ground and big things are brewing.

    With regard to the FAA proposed human space flight requirements, Tim mentioned that SpaceX will be submitting comments (due this month), meanwhile, he commends the regulators for their approach on this, which he views as consistent with the statute in putting a premium on safety while allowing risk. I agree. He concluded that the pieces are in place for "a Renasissance in space." (See? Who says lawyers are negative thinkers?)

    (As to an update on today's scrubbed Falcon 1 launch, Tim had no information other than what has been reported, but he said "Elon is very candid" even "sometimes against the advice of counsel" and would let everyone know what's going on.)

    More lawyers to talk after lunch. I'll try an update later, if not tomorrow.

    I also ran upstairs for a few interesting sessions at the concurrently (and very inconveniently) scheduled Remote Sensing Industry conference (dueling conferences, no laptop, bad planning Jess) and should say a few things about that in another post.

    (By the way, Clark, just kidding about stealing your laptop. But if you are here, listen, do you have a cell phone I can borrow? I forgot my recharger...)


    Semi-live bloggin'

    I'm here at the Renaissance Hotel in Washington DC after an afternoon of interesting offerings at the FAA/AST 9th Annual Commercial Space Transportation Conference. (I did not bring a laptop but I borrowed one for this quickie, name-dropping post.)

    Patti Smith and the gang's all here from AST of course. Ms. Smith finally answered the eternal question, are we alone. No we are not, she said. By which she meant, we are not alone in the space business, and spoke of Canada, China, Europe, India, South Korea, Brazil, Russia, Japan and others who are in the business too. And, she said, "It's more than a race, it's a business."

    Impressively, AST has a lot of friends in high places. Dignitaries joining Patti today included DOT Secretary Norman Mineta and FAA Administrator Marion Blakey. They both appear openly and stridently supportive of commercial space transport. Secretary Mineta said he has now added spaceports to his list of "essential infrastructure" for moving the US economy. And he said, "We will move quickly to greenlight flights that we know are safe." He predicted the first commercial flights for passengers will be in 2008.

    Disappointingly, Elon Musk could not speak as planned, but everyone understood why. (Go Falcon!)

    During lunch the one-and-only Dr. Peter Diamandis treated us to an overview/preview of some spicy rocket racing. Nothing is hotter.

    Other presenters from industry were on hand with cool slides and the occasional promo video -- from Bigelow (Mike Gold, Esq. spoke but didn't sound too much like a lawyer so he was engaging), Sea Launch, AirLaunch, Rocketplane (featuring real live test pilot John Herrington) and more.

    Here's one hot tidbit that got a lot of attention from the new AST study released today,
    The Economic Impact of Commmercial Space Transportation on the U.S. Economy - 2006 : "In 2004, commercial space transportation and enabled industries generated a total of nearly $98.1 billion in economic activity, over $25 billion in earnings, and over 550,000 jobs." Really!? Check out the whole study.

    Wish you were here. (And yes, many of you are. In fact, Ms. Smith and the Secretary both noted how large the conference has grown.) Hi to all my new pals, including Naoyuki Fukuda of JAXA, and Lou Gomez from New Mexico (Southwest Regional Spaceport).


    Clark's Stairway to Space

    Clark Lindsey has updated for 2006 his ever-cool and insightful timeline, Climbing a Commercial Stairway to Space, which sets forth milestones for private development of space through 2014.

    Hot developments charted for 2005 included a few surprises such as formation of the Rocket Racing League, and announcement of Falcon 9 (-- as Falcon 1's maiden flight carried over into '06); along with noteworthy happenings like the X Prize Cup debut, NASA's COTS program, New Mexico spaceport action, news from t/space, Blue Origins, AirLaunch, SpaceDev, PlanetSpace and more.

    Clark sees the role of wealthy "space angel investors" as "currently the primary fuel that is propelling the entrepreneurial space movement forward" but predicts commercial space "will not always be dependent on the generosity of a few farsighted individuals. As with most every other commercial technology, practical space transport that is robust and low cost will be achieved with a step-by-step development process in which each step builds on the lessons learned and profits earned in the previous step."

    Clark says in 2005 "the prospects for space tourism continued to strengthen. It appears now that both suborbital and orbital tourism will provide markets big enough to support several successful space transport companies. In that case, private space development will become self-sustaining and not depend solely on funding from a small number of wealthy investors."

    And he talks about space settlement as the "growing motivator" and notes that "the giggle factor" here did not disappear entirely but that "as happened with space tourism after Dennis Tito's ISS flight, the laughing is starting to die away and serious consideration of the concept is becoming more widespread. Several of the space angel investors, such as Elon Musk and Jeff Bezos, have made it quite clear that they are pursuing space development because of their strong belief that people will eventually move to space colonies throughout our solar system."

    Then Clark lays out an enticing timeline for future events we'll be looking for that could change the commercial space world. For example, look forward to trips to the Bigelow Aerospace space hotel ($1 million per seat, which I like to imagine includes deluxe cabin service and a chocolate on your pillow), as well as exotic glass and artworks made on private space stations for sale on earth (circa 2012-2014).

    So climb Clark's stairway for insights and vision. (There is no word on whether he is negotiating for the movie rights.) By the way, maybe next year Clark will add a box on new legislation and promulgation of rules that signal legitimacy of human space flight venture markets and boost the credentials of the industry. And don't forget the growing role of space lawyers as the industry's fortunes rise and rise. After all, in the coming decades, more and more space-faring businesses and individuals will seek legal services and advice as to their rights and responsibilities as citizens, customers and providers in the newly golden age of private space.


    Money for NASA 2007

    I was going to analyze in great depth the $16.8 billion spending plan for NASA in the $2.77 trillion budget President Bush yesterday sent to Congress, and report here on the ins and outs of the space agency's cut, but then I remembered that as much as I enjoy and perhaps know a tiny bit (not much) about things like law, politics, business, science or maybe some other stuff (but probably not any of the above), I have to come right out and say it, I hate budgets, what's more, I am not even in fact positive that I quite understand what a budget actually is.

    Thank goodness for blogspace. Start at NASA Watch where Keith Cowing, who some people think invented NASA, put up links to
    budget information and details, along with Mike Griffin's statement, in which the administrator, noting that "NASA's budget is roughly 0.7 percent of the overall federal budget," says, inter alia,
    This budget demonstrates our national commitment to implementing the Vision for Exploration. It balances NASA's mission to complete the assembly of the International Space Station and fulfill our international partner commitments, while using the minimum number of Shuttle flights to do so. It supports our goal of bringing the Crew Exploration Vehicle online no later than 2014, and potentially much sooner. It provides over $5.3 billion in funding for NASA's science missions and over $724 million for aeronautics research. The FY07 budget also provides almost $500 million for cross-agency support programs, such as science and math education, innovative partnerships for NASA to leverage commercial industry, and development of the unified agency-wide management systems to get NASA's finances in better order.

    Pros and cons of the budget? Yes and yes. Head over to Space Politics where Jeff Foust, who could walk you through the process in his sleep, covers the budget with a first look, and more details, along with a roundup of Congressional reaction, lobbying efforts and space groups' reactions. For starters.

    And Clark Lindsey is all over it too, of course, with
    more reactions to the proposed budget.

    Now if you'll excuse me, all this budget talk makes my head spin. I'm going over to
    Sploid for something a bit lighter. Back later.

    * * *
    Update: Don't forget reaction in local media covering impact to NASA field centers.


    Spacehab v. NASA

    Spacehab's legal dispute with NASA in connection with the 2003 Columbia disaster spilled into federal district court in Houston on Friday as the company filed a civil suit against the space agency alleging $79.7 million in loss and damages due to the space shuttle explosion.

    As the company's release states, Spacehab "claims that NASA’s actions and omissions led to the space shuttle disaster and the destruction of the Company’s flight assets. The complaint identifies the tragedy as a foreseeable consequence of NASA’s negligence as documented in the Columbia Accident Investigation Board (CAIB) report which represents the findings of the post-accident investigation."

    (I sent a note over to the Spacehab communications V.P., Kimberly Campbell asking her for a copy of the pleading. I like to read them. You don't have to.)

    The legal wrangling began with Spacehab's claim for recovery under the Federal Tort Claims Act (which of course is the statute under which the US has waived its sovereign immunity to allow civil suits for actions arising out of negligent acts of its agents.)

    Michael E. Kearney, SPACEHAB president and CEO said, “We are disappointed that NASA took no action to resolve this claim, and that we had to resort to the courts in order to achieve a fair and reasonable settlement,” stated

    Meanwhile, as noted in some reports, despite the ongoing dispute NASA and Spacehab continue to do business (for example, NASA awarded Spacehab's subsidiary Astrotech a $1 million contract to provide payload processing services, thank you.)

    (As also noted, if Spacehab's
    stock price stays below $1.00 the company could be delisted from NASDAQ. I won't say I own company stock but I hope that doesn't happen.)


    UK Policy on Humans in Space

    Over in the UK some have criticized US space policy. (For example, see NASA Watch this week, Another Hollow Space Rant From the UK Press. We're just happy Keith Cowing is on our side of the pond ;)

    Well now you can have your say on UK space policy. The
    Royal Aeronautical Society (RAeS) Space Group recently published the discussion paper, Humans in space - UK policy and invites your comments and contribution.

    Pat Norris, chair of the Society's Space Group notes,
    The Discussion Paper attempts to be logical and balanced. However, on a personal note I would like to say that the paper has been born out of long standing frustration at the state of manned spaceflight. I helped (in a very small way) to put the first humans on the Moon in the 1960s as manager of Apollo navigation at TRW in Houston, and then watched as NASA took bad decision after bad decision concerning human spaceflight programmes. I gave vent to my frustration in evidence submitted to hearings of a House of Lords Committee on space about 20 years ago, but only now have felt that the time was right to initiate a substantive discussion on UK policy.

    I would very much welcome your involvement in reviewing UK policy on human spaceflight, and thereby helping to create a balanced and sustainable programme of solar system exploration.
    Pat adds that the discussion paper "is the start of a RAeS initiative to help inform UK policy on human spaceflight to be followed by a Forum in Spring 2006 at which the issues will be debated" and that opinions are sought on the issues raised and questions posed in this paper to help inform debate at that forum. Please send your comments to space@raes.org.uk. Responses received by 28 February will be included in helping to shape the programme of follow-up activities which is now beginning to emerge."

    (Hat tip to Jim Volpe at
    Space Generation for the heads up on this.)

    By the way, policy critiquing aside, Happy
    140th birthday to the The Royal Aeronautical Society.


    Pop Space

    Who could be cooler than a space lawyer named Pop?

    Virgiliu Pop rocked
    The Space Show on Sunday (Jan. 29), and as the broadcast's esteemed host Dr. Livingston recapped, "Virgiliu Pop returned to The Space Show for this special program discussing his new book, Unreal Estate: The Men Who Sold the Moon about the men and women who have and are selling the Moon and other cosmic real estate. Mr. Pop has done stellar research on this topic and his book is extremely informative and interesting. Many of the characters in the book are hilarious to read about and listening to Virgiliu talk about them on the show was a great experience. You will find the stores he tells to be compelling, the legal augments as to why one cannot on space real estate to be illuminating, and the entire discussion to be not only unique but very special."

    Listen for yourself. (MP3)

    I found it especially interesting to hear Virgil say that as he worked on his thesis on space property rights (which he is completing at the University of Glasgow), his view changed: Characterizing his prior thinking as "a more socialistic approach" based on the common heritage of mankind, he says after research and reading, "I changed . . . Now I do belief that property rights are an important issue and are actually maybe indispensable for the development of space." Yes.

    He's having fun, too. (Remember the sizzle when, to make a point, Virgil claimed
    ownership of the sun? What a hottie.) He hauls out some fascinating stories and characters from the annals of space property claims, including everything from James Thomas Mangan's Nation of Celestial Space, to Dennis Hope selling the moon, to Gregory Nemitz charging NASA a parking and storage fee for landing NEAR Shoemaker on 433 Eros. Not to mention Virgil's spin on the Masai's claim of ownership of all cows on Earth. (If these were the issues, I might never have fallen asleep during property class in law school.)

    * * *
    (By the way, don't think it's easy following a guest like
    Rand Simberg, who should have his own Space Show. And yes, Rand cited the Outer Space Treaty on the air last week. Always a treat when the rocket wizards do that.)

    Spotting the Spysat Spotters

    In February's Wired, Patrick Radden Keefe reports on the world of amateur satellite spotters who "can track everything government spymasters blast into orbit." (Except Misty.) Nothing illegal about it, either. Try it for yourself. (Via the Instapundit, who, as I may have mentioned, wrote a hot new book about folks running around doing all kinds of techno-savvy stuff big government and other Goliaths did not quite expect.)


    Space-free State of the Union

    In his State of the Union address last night the President did not mention space.

    Rex was not surprised.)

    * * *
    UPDATE: Of course, science and math education, which the speech did showcase, lead to great things like space. Over at the
    Space Foundation this morning, Elliot Pulham commended the President "for highlighting the need to foster innovation and improve math and science education to keep the United States competitive globally. Through the introduction of the American Competitiveness Initiative, the President has focused attention on those things that laid the groundwork for the United States' economic and technology leadership - strong skills in science, technology, engineering, and math (STEM), and a commitment to research and innovation." I agree, and it sounds like a promising initiative. (Now it's up to Congress to do some math.)

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