Tuesday, June 30, 2009
Via the Blog of Legal Times, news that incoming FCC Chair Julius Genachowski has picked noted attorney Edward Lazarus as his chief of staff, and Priya Aiyar, Colin Crowell, Bruce Gottlieb, Ruth Milkman, Mary Beth Richards, and Sherrese Smith for other top spots. Here's more.
Much of the policy debate and scholarly literature on network neutrality has addressed whether the Federal Communications Commission (“FCC”) has statutory authority to require Internet Service Providers (“ISPs”) to operate in a nondiscriminatory manner. Such analysis largely focuses on questions about jurisdiction, the scope of lawful regulation, and the balance of power between stakeholders, generally adverse to government oversight, and government agencies, apparently willing to overcome the same inclination. The public policy debate primarily considers micro-level issues, without much consideration of broader concerns such as First Amendment values.
While professing to support marketplace resource allocation and a regulation-free Internet, the FCC has selectively imposed compulsory duties on ISPs who qualify for classification as largely unregulated information service providers. Such regulation can tilt the competitive playing field, possibly favoring some First Amendment speakers to the detriment of others. Yet the FCC has summarily dismissed any concerns that the Commission’s regulatory regime inhibits First Amendment protected expression.
For their part, ISPs have evidenced inconsistency in how seriously they value and exercise their First Amendment speaker rights. Such reticence stems, in part, from the fact that ISPs combine the provision of conduits, using telecommunications transmission capacity, with content. While not operating as regulated common carriers, the traditional classification of conduit-only providers, ISPs can avoid tort and copyright liability when they refrain from operating as speakers and editors of content. In other instances, the same enterprise becomes an aggressive advocate for First Amendment speaker rights when selecting content, packaging it into a easily accessible and user friendly “walled garden,” and employing increasingly sophisticated information processing techniques to filter, prioritize and inspect digital packets.
Technological and marketplace convergence creates the ability and incentive for ISPs to operate as publishers, editors, content aggregators, and non-neutral conduit providers. No single First Amendment media model (print, broadcast, cable television and telephone), or legislative definition of service (telecommunications, telecommunications service and information service) cover every ISP activity. Despite the lack of single applicable model and the fact that ISPs provide different services, the FCC continues to apply a single, least regulated classification. The inclination to classify everything that an ISPs does into one category promotes administrative convenience, but ignores the complex nature of ISP services and the potential for to harm individuals, groups and First Amendment values absent government oversight. For example, the information service classification enables ISPs to engage in price and quality of service discrimination that network neutrality advocates worry will distort a free marketplace of ideas.
This paper will examine the different First Amendment rights and responsibilities borne by ISPs when they claim to operate solely as conduits and when they combine conduit and content. The paper will show that ISPs face conflicting motivations with light FCC regulation favoring diversification into content management services, like that provided by editors and cable television operators, but with legislatively conferred exemptions from liability available when ISPs avoid managing content. The paper concludes that current media models provide inconsistent and incomplete direction on how to consider ISPs’ joint provision of conduit and content. The paper provides insights on how a hybrid model can address media convergence, and promote First Amendment values while imposing reasonable nondiscrimination responsibilities on ISPs.
Download the paper from SSRN here.
One celebrity is already arguing that UK family court proceedings involving famous families and their children should be closed to the media despite new rules opening such proceedings to the press. But an attorney for the media counters that high profile figures are "no different" from others, and should get no exemption from family court rules. Read more here.
Last year, the Federal Communications Commission held its largest ever spectrum auction, selling exclusive rights to use coveted wireless frequencies for approximately $20 billion. This turned out to be the largest ever single auction of public property in U.S. history. Aside from its sheer magnitude, the auction of frequencies in the 700 MHz band was notable for the federal government's attempt to use the auction process as a mechanism to value various conflicting public policy goals. For the first time, the FCC set out to ascertain just how much a contested policy goal would cost in foregone auction revenue and vowed to give up the goal if it cost too much.
This use of auctions as a heuristic for valuing public interest goals raises interesting questions about the relationship between markets and policy, and between government as a proprietor of public resources and as a regulator of those resources. I argue that it is possible to use auction results to inform the policy process without elevating revenue goals over other public policy objectives. In the 700 MHz auction, however, the FCC misunderstood what information auctions can yield and then failed to design an auction that would supply even that information. Correcting these problems for the spectrum auctions of the future - what may be the last great "land rush" to obtain wireless resources valued at more than $1 trillion - would lead to a more rational, transparent, and equitable communications policy.
Download the article from SSRN here.
Premiering on HBO tonight at 9 p.m., 8 central, "Shouting Fire: Stories From the Edge of Free Speech," a documentary from hyphenate Liz Garbus, daughter of First Amendment attorney Martin Garbus. According to the Blog of Legal Times,
It's a dynamic look at the history of free speech in the last century, including the McCarthy era, Vietnam protests, and post-9/11 paranoia. But that history is interspersed with in-depth portraits of three controversial speakers of recent years: Ward Churchill, who was drummed out of his job as a professor at University of Colorado-Boulder after suggesting that the 9/11 attack on the World Trade Center was not a senseless act; Debbie Almontaser, forced to resign as principal of a New York City school after the New York Post twisted remarks she had made about the meaning of "intifada"; and California high school student Chase Harper, who was suspended for wearing a t-shirt with the message, "Homosexuality is shameful."
Read more here.
The First Amendment to the United States Constitution prohibits Congress from enacting laws abridging the freedom of speech. However, the text of our Constitution and the First Amendment do not expressly address the issue of anonymous speech. Records from the state ratifying conventions and from the First Congress, the drafters of our Bill of Rights, lack any mention of anonymous expression. Still, anonymous speakers and their works played an immensely important role in the founding era and throughout our Nation’s history.
This article explores the interplay of the right to engage in anonymous speech and the freedom of online speech. Part I of this article offers a brief history of anonymous speech from the invention of the printing press until today. Part II discusses two of the most important decisions concerning anonymous speech from the U.S. Supreme Court, as well as state high courts and lower federal courts. Part III argues that the First Amendment protects the right to speak anonymously online. I conclude with a brief discussion of the future of anonymous online speech rights.
Download the paper from SSRN here.
Monday, June 29, 2009
Friday, June 26, 2009
Via the blog Copyrights and Campaigns, this story about a cease-and-desist demand from the New York Times against the Republican Governors' Association for its parody of the paper. The RGA is in full pursuit of Senator Jon Corzine, up for re-election this year, and thought "The Corzine Times," attacking the incumbent Corzine would be a neat tactic. Not so amusing, said the NYT, which claims that the parody infringes the NYT's IP rights.
The title for the site is designed to recall the world famous, protected New York Times logo, and the pages use the same fonts and layout as nytimes.com in order to mimic its design. Such copying is a clear infringement of The Times's rights under the Copyright Act of 1976 and falsely suggests, in violation of the Lanham Act, that the Times has sponsored or is otherwise affiliated with your website.
From the Chronicle of Higher Education News Blog: a story about problems at the University of Hawaii's student newspaper EIC.
The university has confirmed that from January 2008 to May 2009, the editor, Kris DeRego, made up the names of 21 sources in his articles and quoted eight people identified as students who were not enrolled at the time the articles were published.
While most of the articles listed on the correction page describe minor campus-life issues, one story — about the university’s presidential finalists — includes “candid” quotes from nonstudents about what officials were looking for in a president, Pacific Business News reported.
Read more here.
Watchdog agency Ofcom says Sky TV (BSkyB), owned by Rupert Murdoch, should share its premium channel content with other broadcasters in order to ensure a competitive market, and asked all parties to make their opinions known by the middle of August. But Sky TV has already indicated it opposes the idea and will fight it in court.
Ofcom says the price at which Sky TV's content could be offered to other parties would be regulated. Read more here. Here's more on the "must offer" regulation from the Wall Street Journal and the Financial Times.
Thursday, June 25, 2009
From Professor David Anderson, co-author of Franklin, Anderson & Lidsky on Mass Media Law:
The 2009 Supplement to Franklin, Anderson, & Lidsky, Mass Media Law, will be sent no later than July 10 to all law teachers known to Foundation Press as users of the casebook. The Supplement reports developments from the date of the 7th edition (2005) through June 2009 and is designed to be assigned to students along with the casebook. It covers changes in information policies initiated by the Obama administration, the Supreme Court decision in the “fleeting expletives” case, and many other recent developments in media law.
If you are a user of the casebook and do not receive your complimentary copy of the Supplement by mid-July, please contact Foundation Press directly.
A program produced by Elisabeth Murdoch, called "The Moment of Truth," that is among the most popular on Greek television has been banned by Greek regulators after it aired some particularly embarassing scenes. The program, which is also on the air in a number of European countries, features a sort of "truth or dare" format for contestants, who answer questions while they are hooked up to a lie detector. Winning contestant can earn cash for truthful answers.
The Greek regulatory agency told the broadcaster it had finally gone too far after a series of shows that raised concerns. The company is now deciding whether to challenge the ban in the courts. Read more here and here.
Harvard doctoral student Emily Glassberg Sands is presenting the results of empirical research that demonstrates that there is perceptable gender bias in the theater, in terms of how artistic directors choose which plays to present. Directors seem to prefer male playwrights to female playwrights, and the directors who do the preferring seem to be female. Philip Boroff's article for Bloomberg.com explains Ms. Sands' research, which she carried out while a student at Princeton. Here's more on her work from the New York Times.