March 25, 2008
Is That Your Final Answer?
Fox, the network that won the "fleeting expletives" case against the FCC in the Second Circuit, a case that will now be heard in the Supreme Court, is now refusing to pay the much diminished fine that the agency has imposed against it and some affiliates for a "Married By America" episode in which contestants licked whipped cream off some strippers in what the FCC thought was a "suggestive" manner. Instead, the network is appealing the fine. The FCC had originally imposed a sanction of more than a million dollars, but then slashed it to less than $100,000. Nevertheless, Fox says it will appeal on principle, without paying the fine, which is also an unusual move. Read more here.
BBC Website In English Now Available In China
The BBC says that the People's Republic of China seems to have decided to allow access to its website, without any acknowledgement that previously the government was blocking such access. The unblocking seems to apply only to English-language material. Read more here.
More Wireless Spectrum Available? Google Thinks So
Google is suggesting a plan to open up the "white space" available on the tv spectrum to allow more consumers to get access to wireless Internet access after broadcasters move to all digital broadcasting in 2009. The space could be used for mobile web access, for example. Here's the text of Google's letter to the FCC outlining the plan. It says in part:
Under our own enhanced protection proposal, a TV white space device will not transmit on a channel until it first has received an "all clear" signal for that channel, either directly from a database of licensed transmitters in that area, or from a geo-located device with access to that database. That "permission to transmit" signal (at a maximum power level of 4W EIRP) would be sent on channels the geo-located device already knows are clear of licensed users. Any device without geo-location and database access would not transmit at all, unless and until it has successfully received advance permission from such a device.
Further, all TV white space devices would be blocked from transmitting by any wireless microphone beacon in that channel, using signals specifically designed to be easy to reliably detect, and coded to be identifiable to prevent abuse. These beacons should be quite inexpensive, and would be used in conjunction with existing wireless microphones, so there would be no need to replace legacy devices.
In addition, we are proposing a "safe harbor" for wireless microphones in channels 36-38. No TV white space device would be permitted to transmit in these channels. This will also protect medical telemetry devices and radio astronomy services, which are licensed to use channel 37.
Even in the absence of spectrum sensing, then, these enhanced measures should be more than adequate to protect all licensed uses.
Read more here in a New York Times article published today.
Children Loose in a Virtual World
As parents and governments try to track their behavior and prevent their access to material that might be harmful to them, children and teens simply move more quickly to evade monitoring as well as to sites that are more fashionable and which are unfamiliar to the adults in their lives. Consider what youngsters are doing in the UK, where they successfully misrepresent their ages to get around online protections (and there's no reason to think young people elsewhere are behaving differently). UK regulators, parents, and school authorities are waiting for a report from psychologist Tanya Byron, appointed by PM Gordon Brown to look into how children interact with online technology. She's expected to suggest that parents put family computers in easily supervised areas, such as communal spaces--a no-brainer. But what else? And how long before those under 18 crack any new behavioral or technological codes?
Link: Institute for Public Policy Research: A Generation of Youth Are Being Raised "Online"
March 24, 2008
Results of FCC Auction
So, who came out a winner in the recent FCC auction of the spectrum? Apparently, the usual suspects--AT&T and Verizon Wireless, which were the high bidders ($16 billion of the total $19 billion bid). Verizon Wireless took nearly every license available in the "C" block--the section in which Google was expected to snap up some licenses but ultimately did not; Google went home a bridesmaid. However, its participation did trigger the "open access" requirements (based on bidding hitting a minimum reserve). Frontier Wireless, owned by EchoStar, bid about 3/4 of a billion for a bunch of licenses. Finally, no bidder offered enough toward that significant "D" block separated out for an emergency communications network--minimum price was $1.3 billion. The FCC says it will investigate why that part of the auction failed to attract enough interest.
Justice: Sirius/XM Merger Can Go Ahead
The Department of Justice has closed its investigation of the proposed merger between Sirius Satellite Radio and XM Satellite Radio Holdings, and has concluded that such a merger would not seriously diminish competition in the marketplace. The merger can now go forward, assuming the FCC okays it as well. Here's a link to DOJ's announcement.
The Fair Use Defense in Copyright
Jennifer E. Rothman, Loyola Law School, Los Angeles, has published "Why Custom Cannot Save Copyright's Fair Use Defense," at 93 Virginia Law Review in Brief 243 (2008). Here is the abstract.
This article is a short reply to Richard Epstein's comments on my article, The Questionable Use of Custom In Intellectual Property, 93 Virginia Law Review 1899 (2007). In the underlying article, I critique the general preference of courts to incorporate customary practices into intellectual property law. In this reply, I disagree with Professor Epstein's claim that custom should be dispositive in some instances to determine the scope of copyright's fair use defense. Although I observe that for some individual parties various customary practices may be cost-effective, their incorporation into the law expands the scope of copyright in ways that unreasonably limit and undervalue fair uses. Epstein's preference for private ordering is flawed, at least in the IP context, because suboptimal customs will develop due to market inequalities, the complexity of the IP industries and the dearth of ongoing relationships and repeat players.
Download the article from SSRN here.
March 23, 2008
Two Russian Journalists Murdered
Russian law enforcement is investigating the murder of Ilyas Shurpayev, a Channel One correspondent, in his Moscow apartment. Firefighters found the body when they were called to the scene to put out a fire, which they believe was set after Mr. Shurpayev died. Police indicate that a few hours after Mr. Shurpayev died, another journalist, Gadzhi Abashilov, was shot to death in Dagestan, Mr. Shurpayev's home province, by two unidentified gunmen. They would not speculate on whether the killings were related. Read more here.
"Oprah Show" Audience Member Sues For Injuries
An audience member is suing Harpo Studios over injuries she alleges she suffered when visitors rushed to occupy seats at a December 2006 show. Orit Greenberg says she was permanently injured when staff at the Oprah Show told attendees they could sit wherever they wanted and people rushed to sit down. Read more here.
The New York Times On Fleeting Expletives at the Supreme Court
Today's New York Times features an editorial on the Supreme Court's decision to hear the Second Circuit's ruling in Fox v. FCC.
The Supreme Court is throwing itself back into the debate over indecency on television, and that may not be a good thing. It agreed last week to review the Federal Communications Commission’s policy of punishing broadcasters for airing “fleeting expletives” — a few isolated bad words. A federal appeals court wisely struck down the F.C.C.’s harsh rules, which have done serious damage to free speech. We hope the Supreme Court does not authorize the F.C.C. to return to its censorial policies.
Read the rest of the editorial here.