February 4, 2010
What Is the FCC's Regulatory Over the Internet
The Federal Communications Commission's order directing Comcast to cease certain traffic management techniques in the name of network neutrality adopted a very strong theory of the FCC's regulatory jurisdiction over the Internet. This article offers three responses: (1) Briefly reviewing the theory of the FCC's "ancillary jurisdiction" and the theory offered in the Comcast order, the article concludes that the FCC's ancillary jurisdiction cannot be as broad as the agency asserted - for the agency claimed the power to regulate any aspect of Internet service, including price and quality of service. Because "ancillary jurisdiction," however broad, simply cannot be as broad as the FCC's nearly plenary authority over common carriers (as the FCC itself had previously recognized), the Comcast order states an untenable theory of regulatory power. (2) Although a rigorous administrative law analysis would conclude that the FCC does not have any "ancillary jurisdiction," that conclusion is foreclosed by Supreme Court precedent, both generally and by a specific dicta that the FCC has some ancillary authority over the Internet. The article concludes that the FCC's ancillary authority can be reasonably interpreted and rationally cabined - giving the FCC jurisdiction over Internet carriage of Title II and Title III services, meaning, for example, that the FCC has jurisdiction to regulate Internet carriers' treatment of "interconnected VOIP," as in fact the FCC has done. (3) Finally, the article offers a structure for conferring on the FCC an appropriate degree of regulatory authority over the Internet, through appropriate legislation. Because current antitrust doctrine struggles with the sorts of issues that might arise in the Internet, the FCC should have authority to enjoin unfair competition practices, when committed by Internet carriers offering public services (and at the retail level). This authority would be broad enough to cover the practices alleged in the Comcast case, but only if the FCC were to follow the substantive requirements of an unfair competition analysis (as it did not).
Australian Judge Rules That "Men at Work" Song Infringes "Kookaburra"The band "Men at Work" has lost a plagiarism suit. The Australian judge hearing the infringement suit brought by Larrikin Publishing against the group has ruled that the song "Down Under" impermissibly quotes from Marion Sinclair's song "Kookaburra," written in 1932. Read more and hear audio clips here.
Host Sues BBC For Age and Sex Discrimination
BBC on-air host Miriam O'Reilly (Countryfile) is planning to sue the network for age and sex discrimination after it cancelled her contract, as well as those of other female hosts over the age of 40. The network has also let other older female hosts go, including Arlene Phillips, who previously served as a judge on the popular program "Strictly Come Dancing."
Oh, Mel...Mel Gibson perpetuates his fifteen minutes of problems with the media with this remark after his answer to an interviewer who asked about his anti-Semitic tirade four years ago. Link (with beep) here.
February 3, 2010
Whither the Tweet?
FindLaw's Julie Hilden discusses a recent Illinois trial court case in which a judge ruled that a management company had no cause of action against a former tenant for her tweets about it. Did the judge make the correct legal call? The correct practical one?
Effects of the Google Book Settlement
The Google Book Search (GBS) initiative once promised to test the bounds of fair use, as the company started scanning millions of in-copyright books from the collections of major research libraries. The initial goal of this scanning was to make indexes of the books’ contents and to provide short snippets of book contents in response to pertinent search queries. The Authors Guild and five trade publishers sued Google in the fall of 2005 charging that this scanning activity was copyright infringement. Google defended by claiming fair use. Rather than litigating this important issue, however, the parties devised a radical plan to restructure the market for digital books, which was announced on October 28, 2008, by means of a class action settlement of the lawsuits. Approval of this settlement would give Google – and Google alone – a license to commercialize all out-of-print books and to make up to 20 per cent of their contents available in response to search queries (unless rights holders expressly forbade this).
This article discusses the glowingly optimistic predictions about the future of books in cyberspace promulgated by proponents of the GBS settlement and contrasts them with six categories of serious reservations that have emerged about the settlement. These more pessimistic views of GBS are reflected in the hundreds objections and numerous amicus curiae briefs filed with the court responsible for determining whether to approve the settlement. GBS poses risks for publishers, academic authors and libraries, professional writers, and readers as well as for competition and innovation in several markets and for the cultural ecology of knowledge. Serious concerns have also been expressed about the GBS settlement as an abuse of the class action process because it usurps legislative prerogatives. The article considers what might happen to the future of books in cyberspace if the GBS deal is not approved and recommends that regardless of whether the GBS settlement is approved, a consortium of research libraries ought to develop a digital database of books from their collections that would enhance access to books without posing the many risks to the public interest that the GBS deal has created.
Online Copyright Enforcement Trends Around the World
This article examines a worldwide shift in laws, policies, and practices pertaining to intermediaries’ role in online copyright enforcement. We use a comparative methodology to expose an emerging trend in jurisdictions, including Australia, Belgium, Canada, China, the European Union, France, Germany, Japan, New Zealand, Singapore, South Korea, the United Kingdom, and the United States.
Previously, the worldwide standard approach to issues of Internet service provider liability was to require carriers and hosts to behave passively until becoming aware of copyright-infringing activities on their networks, at which time a reaction typically involving the takedown of allegedly infringing content was required. Very recent events in several jurisdictions demonstrate a new trend away from a passive-reactive approach toward an active-preventative approach instead. Government policies, voluntary practices, legislative enactments, and judicial rulings are all contributing to this shift in the rules applicable to online intermediaries.
One reason for the shift is increased pressure from rights holders on legislators and policymakers to make intermediaries play a greater role in online copyright enforcement. Another less obvious reason is that intermediaries’ and rights-holders’ interests are aligning. While rights holders are concerned about copyright enforcement and intermediaries are concerned about network management, the result is a mutual interest in content filtering or traffic shaping.
The danger highlighted by this article is that policymakers might inadvertently craft inappropriate legal and regulatory responses by failing to appreciate the divergent motivations behind, and implications following, this trend. To help avoid those pitfalls, this article exposes a new global trend in the area of online copyright enforcement, and it suggests increased coordination among policymakers and affected stakeholders as an appropriate response.
Download the article from SSRN at the link.
February 2, 2010
Controversy Over Boston Police Interpretation Of Privacy, Cellphone Videorecordings
Debate has erupted over Boston law enforcement interpretations of whether individuals witnessing police behavior or arrests may record that behavior on their cellphones. Because Massachusetts is now a "two party" state, requiring the permission of both the person(s) being taped and the person(s) taping, some members of the Boston police department apparently believe such recordings are now against the law, and since 2007 they have arrested at least two people they observed making recordings. Those charges have since been dropped. But the issue has arisen in Pennsylvania as well. Here's more in a Boston.com story.
February 1, 2010
BBC Examining Image, Treatment of LGBT Persons On Network
The BBC is undertaking an investigation into portrayals of LGBT individuals on tv and radio and via its Internet presence. Peter Tatchell reports in the Guardian that the network has received decades of criticism, and is finally examining not just images of gays, lesbians, and transgendered persons on air, but uses of slurs against them. Says Mr. Tatchell,
Last December, it [the BBC] reported on legislation before the Ugandan parliament that seeks to impose the death penalty for repeated same-sex acts. In response, the corporation's Have Your Say Africa site hosted an online debate: "Should homosexuals face execution?" The BBC later apologised for the headline. It would not, I suspect, hold online debates such as: Should black people be lynched? Moreover, the BBC's commentary announcing the debate put a very weak case against the execution of LGB Ugandans. It read like an open invitation for respondents to endorse the state-sponsored killing of LGBs.
Read the article here.
FDA On Physician Comments Concerning Unapproved Drugs
The FDA has sent a letter to dermatologist and researcher Leslie Baumann about comments she made to the media concerning a drug before its approval. The FDA noted that Dr. Baumann was "an investigator on a clinical trial for Dysport and promoted it well before the drug’s approval in April." Read more in a New York Times article.