Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, May 31, 2006

Tim Wu on Network Neutrality

Tim Wu, Columbia Law School,  has released a working paper on SSRN called "Network Neutrality: Competition, Innovation, and Nondiscriminatory Access". Here is the abstract.

The best proposals for network neutrality rules are simple. They ban abusive behavior like tollboothing and outright blocking and degradation. And they leave open legitimate network services that the Bells and Cable operators want to provide, such as offering cable television services and voice services along with a neutral internet offering. They are in line with a tradition of protecting consumer’s rights on networks whose instinct is just this: let customers use the network as they please. No one wants to deny companies the right to charge for their services and charge consumers more if they use more. But what does need to be stopped is raw discrimination that is nothing more than a tax on innovation taken by government-supported corporations.

Download the entire paper here.

May 31, 2006 | Permalink | Comments (0) | TrackBack (0)

More on Network Neutrality

Bill D. Herman, University of Pennsylvania, has published "Opening Bottlenecks: On Behalf of Mandated Network Neutrality" in the FCC Communications Journal. Here is the abstract.

This paper calls for mandated “network neutrality,” the principle that broadband service providers (BSPs) should generally treat all nondestructive data equally. Without such a mandate, BSPs will likely begin charging content providers for the right to send data at the fastest speeds available. The present frequency with which BSPs block some data entirely will also likely increase.

Neutral networks are preferable for two key reasons. First, they spawn innovation, as illustrated by the explosive online innovation to date. Second, neutral networks better distribute communication power, promoting First Amendment values. Extant and likely future acts of discrimination erode both goals. The danger is real in the highly concentrated broadband market; BSPs have the incentives and means to engage in a high degree of broadband discrimination.

This paper further demonstrates that ad hoc regulation is ineffective in dissuading even grossly anticompetitive network discrimination. Further, network congestion can be and is managed adequately without resorting to discrimination. Finally, it rejects Christopher Yoo’s call for multiple special-purpose networks as both unrealistic and undesirable.

Download the entire article from SSRN here.

May 31, 2006 | Permalink | Comments (0) | TrackBack (0)

Ann Bartow on Gender and Copyright Law

Ann Bartow, University of South Carolina School of Law has published "Fair Use and the Fairer Sex: Gender, Feminism, and Copyright Law" in the American University Journal of Gender, Social Policy & the Law. Here is the abstract.

Copyright laws are written and enforced to help certain groups of people assert and retain control over the resources generated by creative productivity. Because those people are predominantly male, the copyright infrastructure plays a role, largely unexamined by legal scholars, in helping to sustain the material and economic inequality between women and men. This essay considers some of the ways in which gender issues and copyright laws intersect, proposes a feminist critique of the copyright legal regime which advocates low levels of copyright protections, and asserts the importance of considering the social and economic disparities between women and men when evaluating the impacts and performance of intellectual property laws.

Download the entire article from SSRN here.

May 31, 2006 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 30, 2006

A Canadian Perspective On Sony BMG

Jeremy DeBeer, University of Ottawa Faculty of Law, has published "How Restrictive Terms and Technologies Backfired on Sony BMG" in Internet and E-Commerce in Canada. Here is the abstract.

This short paper addresses the issue of restrictive contractual terms and digital rights management technologies in the music industry, using the recent controversy surrounding Sony BMG Music as a case study. The issues are discussed mainly from a Canadian perspective. Part I provides an overview of the factual and technical background to this story. Part II contains an analysis of the legal consequences of Sony BMG's actions, and offers some insights as to the policy implications for consumer protection, contract and copyright laws.

Download the entire paper here.

May 30, 2006 | Permalink | Comments (0) | TrackBack (0)

Tim Wu on Telecommunications Law

Tim Wu, Columbia Law School, has published "Why Have a Telecommunications Law?: Anti-Discriminations Norms in Telecommunications" as a Columbia Public Law Research Paper. Here is the abstract.

This paper presents telecommunications law with a challenge: how much of the present Telecommunication’s Acts objectives might be accomplished with a focus on a central anti-discrimination rule? The one-rule model provides one answer. This rule should be (1) a general norm that is technologically neutral, (2) in the form of an ex ante rule with ex poste remedies, and (3) anchored on a model of consumers’ rights. The form of the rule recommended here is hardly radical. It is, rather, something of a restatement of the best of telecommunications practice based on decades of telecommunications experience. It borrows from what, as best we can tell, has worked, while shunning the regimes with the greatest tendency toward corruption.

Download the entire paper from SSRN here.

May 30, 2006 | Permalink | Comments (0) | TrackBack (0)

Network Neutrality and Industry Structure

George S. Ford, Thomas Koutsky, and Lawrence Spiwak, all of the Phoenix Center for Advanced Legal & Economic Studies, have published "Network Neutrality and Industry Structure" as Phoenix Center Policy Paper No. 24. Here is the abstract.

One of the most heated debates in the current efforts to re-write the Communications Act has been whether the federal government should impose "Network Neutrality" requirements on broadband service providers. While we argue neither for nor against the need for Network Neutrality legislation in this POLICY PAPER, our analysis shows that policymakers should avoid Network Neutrality mandates that have the intent or effect of "commoditizing" broadband access services since such a policy approach is likely to deter facilities-based competition, reduce the expansion and deployment of advanced communications networks, and increase prices. Given the economic characteristics of local communications networks, policies that promote commoditization of broadband access could lead to the monopoly provision of advanced broadband services in many markets. This outcome would harm consumers substantially.

Download the entire paper here.

May 30, 2006 | Permalink | Comments (0) | TrackBack (0)

Merger Doctrine and Copyright Law

Michael D. Murray, University of Illinois School of Law, has published "Copyright, Originality, and the End of the Scenes a Faire and Merger Doctrines for Visual Works" as Illinois Public Law Research Paper 06-09. Here is the abstract.

The merger doctrine in copyright states that if an idea and the expression of the idea are so tied together that the idea and its expression are one - there is only one conceivable way or a drastically limited number of ways to express and embody the idea in a work - then the expression of the idea is uncopyrightable because ideas may not be copyrighted. The scenes a faire doctrine complements the merger doctrine by providing that certain subject matter - stock images, tried and true story lines, fables and folklore, scenes of nature, common visual and cultural references, all of which fall under the description of scenes that must be done - are not copyrightable because they are part of the public domain and no one can obtain a monopoly on such images by putting them into a fixed and tangible medium of expression. Although the courts have from time to time acknowledged that the standards for originality and creativity required for copyright are intentionally low, and that there are a myriad of ways to express themes and ideas visually, half of the circuits of the United States Courts of Appeals have applied a reductionist, dissection and filtration approach in their consideration of infringement of visual works that is driven by an expanded view of the applicability of the merger and scenes a faire doctrines to visual works. This article will argue that the merger doctrine and scenes a faire doctrine are perfectly well adapted to verbal and literary works, but they have no meaning and no proper application with regard to visual works and should be discarded in the consideration of infringement of visual works.

Download the entire paper from SSRN here.

May 30, 2006 | Permalink | Comments (0) | TrackBack (0)

VoIP and the Wiretap Act

Daniel Garrie and Matthew Armstrong, Rutgers University School of Law, Camden, and Donald P. Harris, Temple University Law School, have published "VoIP and the Wiretap Act: Is Your Conversation Protected?" in the Seattle University Law Review. Here is the abstract.

10101101: Is this sequence of digits voice or data? To a computer, voice is a sequence of digits and data is a sequence of digits. The law has defined 10101101 to be data, and 10101001 to be voice communications. Courts have constructed a distinction between data, 10101101, and voice, 10101001. However, that distinction is blurred when voice and data are simultaneously transmitted through the same medium. The courts forbid third parties to tap or monitor voice communications, yet permit data packets to be tracked, stored, and sold by third parties with the implied consent of either party engaged in the transaction. Prior to the convergence of voice and data into a single transmission medium, courts were able to enforce the distinction between voice and data communications by constructing the clickstream data exemption to the Wiretap Act. With the onset of Voice over Internet Protocol (VoIP) and comparable technologies, the privacy rights assigned to 10101101 (data) or 10101001 (voice) have been blended such that it is unclear whether voice communications using VoIP are protected.

This Article examines VoIP communications in the modern digital arena. More specifically, the Article suggests a new legal framework for courts to analyze VoIP claims brought under the Wiretap Act. Part I of this Article provides a comprehensive overview of VoIP privacy rights and legal treatment. Part II sets out a background primer for readers unfamiliar with Internet technology, including VoIP and clickstream data. Part III discusses relevant privacy case law, and Part IV describes how that case law has been applied to electronic communications. Part V provides a statutory analysis of the different privacy levels that are, and should be, afforded to different types of electronic communications. Part VI identifies the specific problem facing the legislature and courts regarding the treatment of VoIP. To solve this problem, Part VII proposes a modified framework advocating legislative action to re-write the Wiretap Act by creating an explicit clickstream data exception with a corresponding decrease in the mens rea element from intent to recklessness for persons using clickstream data. By adopting this approach, the legislature would enable companies to legitimately tap clickstream data with or without an end-user’s consent, though companies doing so would be required to design systems that monitor only clickstream data and do not tap protected oral telephone and electronic communications. In this way, Congress can protect VoIP privacy expectations while maintaining the vitality of the Internet economy.

Download the entire article from SSRN here.

May 30, 2006 | Permalink | Comments (0) | TrackBack (0)

AG Tells Internet Providers Data Retention a Good Thing

Attorney General Alberto General met with Internet providers last Friday in a closed door meeting and told them the Bush administration believes that data retention might be a good thing in order to enable law enforcement to track down child porn offenders. According to a story on CNET, the administration is now suggesting that ISPs keep such information for up to two years to enable prosecutions, since the European Union now requires its ISPs to do so. Read more here.

Representative Diana DeGette (D-Colorado) has also introduced an amendment to a bill that would require "each provider of Internet access services to retain records to permit the identification of subscribers to such services for appropriate law enforcement services. Such records shall, in accordance with such regulations, be retained for not less than one year after a subscriber ceases to subscribe to such services."

May 30, 2006 | Permalink | Comments (0) | TrackBack (0)

Monday, May 29, 2006

Adam Cohen On Net Neutrality

Read Adam Cohen's editorial on net neutrality in Sunday's Times.

May 29, 2006 | Permalink | Comments (0) | TrackBack (0)

Sunday, May 28, 2006

Appeals Court Reverses Lower Courts; Holds That Bloggers Are Entitled to Benefits Of California Shield Law

A California appellate court has held that the "John Doe" bloggers in the Apple Computer case may avail themselves of the same protections as traditional journalists under the California shield law. Apple had alleged that the "John Doe" bloggers had published information about Apple's trade secrets and had attempted to serve a subpoena; the bloggers claimed a reporter's privilege under the shield law. The lower court found in favor of Apple, and the website publisher, represented by the Electronic Frontier Foundation, appealed. The appellate court ruled that "[t]he shield law is intended to protect the gathering and dissemination of news and that is what petitioners did here. We can think of no workable test or principle that would distinguish "legitimate" from "illegitimate" news." The court also held that Apple's attempt to subpoena information from the webpage publishers violated the Stored Communications Act. Read the court's ruling here.

May 28, 2006 | Permalink | Comments (0) | TrackBack (0)

Saturday, May 27, 2006

Judge in Libby Case Orders Time to Turn Over Documents

Using the standard set out in Nixon (1974), Judge Reggie B. Walton, who is hearing the case against Lewis Libby, has ordered Time Magazine and Matthew Cooper to turn over documents the defense has requested. But he granted a motion by Judith Miller to quash the subpoena against her, and he granted in part the motions by the other parties in the case--the New York Times, NBC, and Andrea Mitchell, whom Libby had also subpoenaed, alleging that they had materials vital to his case.

Miller, Cooper and Mitchell had also claimed a First Amendment and common law privilege against disclosure. After limiting the documents to be turned over, Judge Walton noted that the reporters were "personally involved in the conversations with the defendant that form the predicate for the charges in the indictment. Their testimony is critical to the government's case and challenging it will likely be critical to the defense. Thus, the Court is only concerned here with whether a reporters' privilege exists to shield from disclosure documents relating to these three news reporters." Judge Walton concluded that the journalists do not have, under Branzburg, a First Amendment privilege in this case, and he believes that Libby would be able to overcome any common law privilege the journalists might assert.

Read the ruling here.  Read more in an AP report here.

May 27, 2006 | Permalink | Comments (0) | TrackBack (0)

Friday, May 26, 2006

New "Shock Mag" Enters the Marketplace

A new magazine, intended to shock its readers, in the male, 18-34 demographic, will hit Canadian and US newsstands next week. Actually called "Shock", it will be published by Hachette Filipacchi Medias SA and it will feature "blood, pain and natural disasters". It is the English-language version of the French magazine Choc, a hit with since its inception three years ago. Read more here.

May 26, 2006 | Permalink | Comments (0) | TrackBack (0)

Ludacris, Kanye West Sued for Infringement

The group I.O.F. (It's Only Family) is getting its day in court against hip-hop artist Ludacris (Christopher Bridges) and his producer Kanye West. I.O.F. says the artists copied parts of the group's song "Straight Like That" for Ludacris' hit "Stand Up." In Tuesday's courtroom proceeding, Ludacris' attorney said any similarities are simply the result of the culture out of which the songs arose. Wednesday, the judge questioned Mr. West and got an education in hip-hop. The trial should last another week.

May 26, 2006 | Permalink | Comments (0) | TrackBack (0)

House Committee Okays Sensenbrenner "Net Neutrality" Bill

The House Judiciary Committee has approved its chair's, Representative James Sensenbrenner's, "Internet Freedom and Nondiscrimination Act" (H.R. 5417) and sent it on by a 20-13 vote, with all Democrats on the committee voting in favor and most Republicans voting against. The legislation would ensure that broadband providers give competitors the same type of access to the Internet that they have themselves, thus avoiding a "two-tiered" net. Here's a link to Representative Sensenbrenner's bill. Read more about the fight over network neutrality here (subscription may be required) and here.

May 26, 2006 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 25, 2006

Is a Tiered Internet On the Way?

Will we have to ante up more to get access to streaming video and all that lovely stuff we're so used to searching on the 'net? Unless Congress acts to regulate the costs, it's likely that we will. Read more in an article by Popular Science's Tim Folger here. The bill Rep. Markey introduced, and Folger refers to in his article, is called the Network Neutrality Act of 2006. Here's a link.

May 25, 2006 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 24, 2006

FCC Says It Won't Inquire Into Turnover of Records

Replying to a request by Representative Edward Markey of Massachusetts, FCC head Kevin Martin said that the agency does not have the authority to investigate whether Verizon, AT&T and BellSouth may have violated the law by turning over customer phone records to the National Security Agency. Read more here. Here is Representative Markey's original letter. Here is FCC Chair Martin's response.

May 24, 2006 | Permalink | Comments (0) | TrackBack (0)

Ron Burgundy Redux: Comedy Central Apologizes for "Fake News Crew"

According to the Chronicle of Higher Education, Comedy Central has finally apologized for the shenanigans of a fake news crew sent out to get real reactions for a series called "Dog Bites Man." Over the past few months the news crew has tried to infiltrate a panel discussion in Orange County and called the Spokane (Washington) Regional Convention and Visitors Bureau to try to rent a space to disguise as a studio (see the May 10, 2006 Spokane Spokesman Review). The O.C. incident upset some people so much that they threatened a lawsuit. The Chronicle indicates that management at Comedy Central has decided to issue an apology on behalf of Tony Fox, an executive v.p. at Comedy Central, saying the fake reporters had "mishandled" the situation, once confronted, by continuing to deny that they were in fact not media at all. The actors had also apparently impersonated reporters at Portland State University and infiltrated the classroom of an instructor in communications studies. (Chronicle of Higher Education, May 24, 2006: Registration required). For more about the Orange County incident read an article in the Orange County Weekly here.

May 24, 2006 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 23, 2006

David Berkowitz In Court Once Again

David Berkowitz, the "Son of Sam", is in court to try to stop former attormey Hugo Harmatz from using materials Berkowitz said he gave Harmatz years ago to keep for me. He says Harmatz now plans to write about him; to stop him, Berkowitz is suing under the "Son of Sam" law that New York has in place. Read more here. The original New York statute was ruled unconstitutional in Simon & Schuster, Inc. vs. New York Crime Victims Board, 502 U. S. 105 (1991); as a result the state legislature redrafted the law. Read more here. Jessica Yager has an article about New York's Son of Sam law in the 2004 New York Law School Law Review. Note that the Nevada "Son of Sam" law was ruled unconstitutional in December 2004.

May 23, 2006 | Permalink | Comments (0) | TrackBack (0)

EU Directives and the Radio Spectrum

Robert Horvitz discusses possible alternatives for opening up the radio spectrum under current EU directives in a talk he gave recently in Brussels. Read it here.

May 23, 2006 | Permalink | Comments (0) | TrackBack (0)