Monday, November 30, 2009
The Sixth Circuit has upheld the denial of a preliminary injunction to a Memphis, Tennessee bookstore that sells "adult-themed" material.
Plaintiff's first argument is that the definition of "adult bookstore" violates the Equal Protection Clause. The Tennessee Act regulates "adult-oriented establishments," which include "adult bookstore[s]":"Adult bookstore" means a business that  offers, as its principal or predominate stock or trade, sexually oriented material, devices, or paraphernalia, whether determined by the total number of sexually oriented materials, devices or paraphernalia offered for sale or by the retail value of such materials, devices or paraphernalia, specified sexual activities, or any combination or form thereof, whether printed, filmed, recorded or live, and  that restricts or purports to restrict admission to adults or to any class of adults. The definition specifically includes items sexually oriented in nature, regardless of how labeled or sold, such as adult novelties, risque gifts or marital aids;
Tenn. Code Ann. § 7-51-1102(1) (emphasis and numeration added). A bookstore will be deemed "adult" under the Act only if, first, its "principal or predominate stock" consists of sexually oriented or adult materials, and second, if it "restricts or purports to restrict" its premises to adults. Plaintiff argues that the second criterion makes the Act under-inclusive, in violation of the Equal Protection Clause. While a bookstore with a predominantly adult stock that excludes minors from its premises is subject to the Act, an identical bookstore that does not so restrict admission -- by, for example, setting up a "small front room" containing its insignificant stock of non-adult materials -- is not subject to the Act. Plaintiff argues that distinguishing between these two types of bookstores constitutes unequal treatment without a rational basis. The rational basis for the distinction is absent, Plaintiff maintains, because both types of bookstores are equally likely to produce the adverse secondary effects targeted by the Act, and no rationale supports exempting from regulation adult bookstores that admit minors....
Equal protection of the laws guaranteed by the Fourteenth Amendment "must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons." ...The Supreme Court has stated that courts will "uphold the legislative classification," if "a law neither burdens a fundamental right nor targets a suspect class, . . . so long as it bears a rational relation to some legitimate end."...
In this case, no "suspect class" is targeted. Nor does Plaintiff argue that a fundamental right associated with the freedom of expression is burdened. Plaintiff concedes that this classification needs only a rational basis to survive constitutional scrutiny. ...
As an initial matter, we note that the bookstores allegedly advantaged by an exemption from the Act are probably few in number, if any such establishments exist at all. Tennessee law prohibits the display of adult material "anywhere minors are lawfully admitted." ...Any bookstore "principally or predominantly" devoted to adult merchandise that wishes to avoid regulation as an "adult-oriented establishment" and sets up a small general-merchandise section, to which minors are admitted, runs a high risk of violating this law and incurring criminal penalties. It is unsurprising, therefore, that Plaintiff does not identify any actual bookstores in Shelby County that meet the first, but not the second, criterion of an "adult bookstore" under the Act.
Even if the kinds of bookstores Plaintiff describes exist, or, as Plaintiff suggests, will come into existence as operators "scramble to establish a small front room of some minor amount of non-adult materials" into which minors are admitted, Appellant's Br. at 23, the "classification" does not lack a rational basis. "Th[e] [rational-basis] standard permits a court to hypothesize interests that might support legislative distinctions, whereas heightened scrutiny limits the realm of justification to demonstrable reality."... We can readily hypothesize the state's interest in confining regulation to bookstores that meet both definitional criteria. As a matter of practice, sexually oriented businesses, including bookstores, commonly restrict admission to adults. Moreover, only those businesses that cater to adults would restrict access in this manner. Restricted access is thus a reliable indicator that the goods offered or displayed on the premises are of an adult or explicit nature. A prominent display advertising an establishment as an "adult store," moreover, is a more objective indicator that the store is of the kind the Act aims to regulate, than the mere share of its stock or trade comprised of adult materials. Hence, it is not irrational for the legislature to use the access restriction as a means of identifying those bookstores that are likely to produce adverse secondary effects targeted by the Act.
Our court has adjudicated an analogous challenge to a restriction of business hours, which applied to adult establishments offering live entertainment but excepted those offering "nonlive entertainment." ... We explained that so long as a regulation "furthers a substantial government interest . . . and there is no evidence of an impermissible motive on the part of" the legislature, such an exception "is not a cause for concern under rational-basis review because a government may implement its program of reform by gradually adopting regulations that only partially ameliorate a perceived evil." ...The same reasoning is pertinent to this case: even if Plaintiff is correct that the exempted bookstores are as liable to produce pernicious secondary effects as the regulated bookstores, Tennessee and Shelby County are permitted to implement a gradual and incomplete solution "that only partially ameliorate[s]" such effects.
Thus, we hold that the district court did not err in determining that Plaintiff has not shown a substantial likelihood of succeeding on the merits of the challenge to the "adult bookstore" definition.
Plaintiff claims that the prohibition is unconstitutional for yet another reason: it violates the Due Process Clause because it allegedly imposes strict liability on the owner for any violations by employees or customers. The Act states that a license or permit will be revoked "when an operator, employee, entertainer, or escort knew, or should have known, of the violation and authorized, approved, or, in the exercise of due diligence, failed to take reasonable efforts to prevent the violation." Plaintiff asserts that an establishment's license will be revoked if an employee "whose knowledge cannot be imputed to the business itself" fails to take a reasonable effort to prevent alcohol use on the premises. ... While the district court did not address this argument, its interpretive premise is without merit. As Shelby County explains, "[a] violation by an employee imperils that employee's permit," but "does not imperil the operator's license, unless [the operator] 'knew, or should have known of the violation and authorized, approved, or, in the exercise of due diligence, failed to take reasonable efforts to prevent the violation.'" ...We agree, as this interpretation of the challenged provision is also compelled by the general standard for revocation of operator's licenses and employees' permits. The Act provides for a revocation or suspension of an operator's license on the basis of an employee's actions only if an operator "has a duty to supervise conduct on the premises," and "knew, or should have known, of the violation and authorized, approved, or, in the exercise of due diligence, failed to take reasonable efforts to prevent the violation." ...Because the Act does not punish operators of adult establishments on the basis of strict liability, we affirm the district court's determination that no substantial likelihood of success on the merits of this claim was demonstrated.
Finally, Plaintiff challenges the Act's provision on "[p]enalties for violation of part," which states:(a) (1) A violation of this part shall, for a first offense, be a Class B misdemeanor, punishable by a fine only of five hundred dollars ($ 500), and shall result in the suspension or revocation of any license.(2) A second or subsequent violation of this part is a Class A misdemeanor, and shall result in the suspension or revocation of any license.
(b) Each violation of this part shall be considered a separate offense, and any violation continuing more than one (1) hour of time shall be considered a separate offense for each hour of violation.
Tenn. Code Ann. § 7-51-1119. Section 7-51-1109 specifies that an operator whose license is revoked is disqualified from receiving an adult-oriented establishment license for five years. Plaintiff argues that a punitive revocation of a license on the basis of past violations of this Act constitutes an unconstitutional prior restraint on future protected expression.
The district court declined to consider this claim on the merits because it determined that Plaintiff, who has not applied for a license nor had a license revoked, lacked standing to challenge the penalty provision. Plaintiff protests that it need not wait for a license revocation to bring a facial challenge on overbreadth grounds. Appellant's Br. at 54-55. "[I]t is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license." ... Plaintiff does not exactly articulate a challenge on the grounds of overly broad or unbridled discretion. However, the essence of Plaintiff's claim is that the allegedly unconstitutional applications of this provision are substantial relative to legitimate applications because punitive revocation suppresses future protected speech "unconnected to the negative secondary effects cited as legislative justification," Schultz v. City of Cumberland, 228 F.3d 831, 849 (7th Cir. 2000). Treating Plaintiff's arguments charitably, we hold that Plaintiff does have standing to bring this facial challenge to the Act on the basis of its penalty provision.
Constitutional invalidity of prior restraints may result from one or both of "two evils . . .: (1) the risk of censorship associated with the vesting of unbridled discretion in government officials; and (2) 'the risk of indefinitely suppressing permissible speech' when a licensing law fails to provide for the prompt issuance of a license." ...The Tennessee Act's licensing scheme is a prior restraint on protected expression. ... Prior restraints are not unconstitutional per se. Richland Bookmart, Inc., 555 F.3d at 533 (citing Odle, 421 F.3d at 389). Where license issuance is based on explicit and objective criteria, a licensing scheme passes constitutional muster when it "guarantee[s] applicants a prompt final judicial decision on the merits of a license denial and preservation of the status quo while an application or judicial review of a license denial is pending." ...Logically, the same procedural guarantees required for license denials are required for license revocations. Furthermore, "[s]ystems of prior restraint . . . [must] also pass the appropriate level of scrutiny."
Plaintiff raises other grounds for its facial attack on the Act, all of which are waived and/or addressed by our opinion in the companion case. Plaintiff's claim that the definition of "adult cabaret," § 7-51-1102(2), renders the Act unconstitutionally overbroad was found to lack merit in Entertainment Productions. Plaintiff's claims that the definition of "specified sexual activities," § 7-51-1102(27), and the prohibition on "fondling," § 7-51-1114(d)(1)(D), are overbroad and/or not narrowly tailored are waived. While Plaintiff identifies these claims in its initial complaint, they are not presented in its Memorandum in Support of Motion for a Preliminary Injunction, and were therefore not addressed by the district court. Lastly, Plaintiff's claim that the prohibition on touching and the buffer-zone requirement are overbroad and/or not narrowly tailored is also waived because it was not presented in its Memorandum in Support of Motion for a Preliminary Injunction and was not addressed by the district court. In any case, we rejected this claim on the merits in Entertainment Productions.
For the foregoing reasons, we affirm the district court's denial of the preliminary injunction.
The case is East Brooks Books v. Shelby County, TN, decided Nov. 25, 2009.
Stephen Fry Leaves Social Networking Site, Saying It Leaked His Private Information To Other Members
Sunday, November 29, 2009
This Report contains an overview of the current Australian tax treatment of the arts industry. To assist with this analysis, the art sector is divided into three broad categories: artists, art bodies and contributors. The Report highlights a number of mechanisms in the Australian tax system which relate to the arts - some which assist and some which do not.
Briefly, the major observations are:
• Employee-artists are subject to similar rules as those that apply to other
• For business-artists:
a) If trading as a sole trader (contractor), the business-artist may be deemed an ‘employee’ for Superannuation Guarantee purposes. This assists business-artists to accumulate superannuation savings for their retirement.
b) To smooth out income fluctuations, there is the ability to average income in a year when there is above-average professional income.
c) They could be regarded as a ‘small business’, and thereby access a number of tax concessions, such as small business capital gains tax (CGT) concessions.
d) Rules can quarantine artistic tax losses, so the losses cannot offset other income, such as part-time wages. There is a carve-out for some artists if their non-artist income is less than $40,000 per annum.
e) Rules can attribute personal service artistic income directly to artists even though a business structure (such as ‘company’) has been interposed between artists and their clients.
• For Art Bodies:
a) The constitution of the Art Body may enable it to be exempt from income tax.
b) The Art Body may be eligible to register as a Deductible Gift Recipient (DGR). Status, as a DGR means that donations to the Art Body may be tax deductible for taxpayers.
c) If the Art Body is not exempt from income tax, then its tax treatment will depend on the business form utilised.
• For Individuals (alive) the tax treatment of their contributions to the arts vary:
a) Donations of cash or property to non-DGRs would normally not be deductible for taxpayers. However, this can be altered if the individual donates through an intermediary DGR (such as the Australian Business Arts Foundation), which then can forward the contribution to a non-DGR. Donations through an intermediary DGR will be tax deductible for the taxpayer.
b) The ‘net inflated amount’ may be tax deductible when there is a minor benefit received in return for donations to DGRs, such as charity dinners and charity auctions.
c) Deductions for cultural goods are available for donations to certain cultural institutions.
d) Deductions for donations to DGRs of other non-cultural goods and land can be available. However, the taxpayer could have a deemed capital gain for the donation, which may negate the benefit of the tax deduction for the donation.
e) Volunteering of time and services (including expenses incurred in doing volunteer work) is unlikely to be tax deductible for volunteers.
f) The purchase of art work is likely to be subject to restrictive CGT rules that either limit the cost base or quarantine subsequent capital losses on disposal of the art.
• For Individuals who make testamentary donations, these will normally not be tax deductible unless the donation is of cultural goods (in very limited circumstances).
• For enterprises purchasing or supporting the arts, they may be able to claim a tax deduction for advertising received in connection to the support. However, such a deduction could be denied or reduced if the purchase includes ‘entertainment’.
• Individuals can set up their own DGRs by creating a Prescribed Private Fund (PPF), a non-profit trust which itself contributes to other DGRs which may include Art Bodies.
• New film tax offset incentives have been introduced which replace the prior deduction system.
After providing an overview of the Australian tax system, this Report analyses the tax treatment of Artists, Art Bodies and Contributors. The Report also canvasses the new tax offset concessions for the film industry, and then outlines some concluding observations about potential reforms that will be further developed in Report #4.
Download the paper at the link.
Thursday, November 26, 2009
From CNN's breaking news department: Two folks crashed President Obama's State Dinner for Prime Minister Manmohan Singh. The Secret Service is now reviewing its procedures to examine how they did it; the couple has been identified as Tareq and Michaele Salahi--she's supposed to be one of the "housewives" on the projected new reality show "The Real Housewives of D.C.". Or after Tuesday night, maybe not.
Wednesday, November 25, 2009
Prepared Remarks of Chairman Julius Genachowski
Federal Communications Commission
“Connecting the Nation: A National Broadband Plan.”
The Clinton Presidential Library
Little Rock, Arkansas
November 24, 2009
Thank you, Senator Mark Pryor, for your kind introduction and for your southern hospitality. I have had a wonderful visit here to Arkansas and Senator Pryor has been such a gracious host and tour guide. I noticed the sign in Senator Pryor’s office says “Arkansas comes first” -- and that’s certainly true.
Thank you for your leadership on the Commerce Committee, where you have been a champion for universal broadband and making sure all Americans enjoy the benefits of modern communications. I’d also like to acknowledge Governor Mike Beebe, who took the time to meet yesterday. The Governor is committed to seizing the opportunities of technology and communications, and we spoke about the various important ways he is pursuing universal broadband in Arkansas.
Finally, I want to thank the Clinton Presidential Library for this opportunity to talk with you about the Federal Communications Commission and, in particular, the National Broadband Plan we are drafting. Yesterday, I had the pleasure of touring the Clinton Presidential Library. Having worked at the FCC during the Clinton administration, it sure was a blast from the past.
One thing in particular struck a chord. There was a plaque that read: In 1994, only 3 percent of U.S. schools were connected to the Internet. By the year 2000, over 90 percent of U.S. public schools were online. Connecting our kids to the Internet at breakneck speed did not happen by accident, and it speaks to the moment we find ourselves in today.
In 1994, President Bill Clinton and Vice President Al Gore announced the goal of connecting every classroom and library in America to the Internet. Senators Jay Rockefeller and Olympia Snowe and Congressman Ed Markey shared this vision and led the effort in Congress to create a program called “eRate” to provide discounted Internet access in schools and libraries.
The FCC implemented the plan and our country has made real progress. As the plaque indicated, almost all instructional rooms in the U.S. are online thanks to eRate, a higher percentage than any other country.
With the eRate program, President Clinton showed us that with a vision and a plan, the U.S. can and will lead the world. By contrast, until now, our country has never had a national strategy for delivering broadband to all homes and businesses.
The result? We are lagging compared to the rest of the world in broadband deployment and adoption. With schools, we still have very high levels of connectivity, but half of teachers say their connection speeds are too slow for what they need.
Why does it matter if the U.S. is in the middle of the pack in broadband deployment? Rather than throw a lot of stats at you -- I’ll do that later -- I’d like to share a story.
I was fortunate recently to visit our troops in the Middle East. I spoke with senior officers at CentComm about the importance of communications to their vital mission -- and learned about the ways in which the military is tackling issues very similar to the ones that confront us at home.
One of those issues is education. I learned about the creative ways that the military is using broadband connectivity to give troops abroad the ability to finish college degrees or engage in ongoing education and development. I visited an extraordinary distance learning center at our Air Force base in Qatar.
I also learned about the ways in which the military is focused on broadband and health care. Soldiers often have to carry hard copies of their medical records with them so that accurate information can be available to military medical personnel if ever needed. The military is working on ways to seize the opportunity of electronic medical records that can be accessed in a secure way over the Internet, wherever and whenever necessary.
Another issue is public safety. The military is focused on ensuring interoperable communications among different services, and we had very good discussions about sharing information, best practices, and technological solutions.
The final issue is morale and family connectivity. The Internet now provides a low-cost way for troops overseas to stay in touch -- in real time -- by video, with their spouses and kids. I was told that nothing is improving the morale of our troops more than broadband and access to its benefits.
Broadband has immense power to improve the quality of lives of our citizens in innumerable ways -- whether it’s our troops serving in Iraq or a family living in Little Rock.
Governor Mike Beebe, Senators Mark Pryor and Blanche Lincoln, and the rest of the Arkansas delegation are fiercely focused on broadband because it is key strategic infrastructure to advance prosperity and opportunity for all Americans.
If I may quote Senator Pryor, “Access to high-speed broadband is not a luxury; it is a necessity. Investing in broadband access for all Arkansans is crucial to growing our economy, improving our health care system, and providing the best possible education for our children.”
I couldn’t agree more.
Last year, the President and Congress addressed broadband in the Recovery Act adopted in February in two ways.
First, the Recovery Act sets aside about $7 billion for near-term broadband grants -- to create jobs, and as a first step to driving universal broadband. These grants are being administered by the U.S. Commerce and Agriculture Departments.
Second, the Recovery Act entrusts the FCC with the responsibility of developing a medium- and long-term National Broadband Plan for our country. That Plan is due in February. We are tackling this assignment with great seriousness.
We believe that broadband is a critical infrastructure challenge of our generation. It is to us what railroads, electricity, highways and telephones were to previous generations -- a platform for commerce and economic competitiveness, for helping address major national challenges like education and health care. As a country we were able to make sure that in each of those cases we achieved the goal of universality. It took time and a national commitment -- but we got there.
But we have a lot of work to do when it comes to broadband. We have work to do on deployment -- ensuring that broadband connectivity is available everywhere in the U.S., including our small towns and rural areas. Nationally, about 10 percent of the country doesn’t have broadband available. Here in Arkansas, that number is somewhat higher -- about 13 percent.
We also have a lot of work to do on adoption and affordability -- ensuring that everyone has a real chance to seize the opportunities of broadband. In Arkansas, the non-adoption rate is around 50 percent -- higher than the national average of about 37 percent. Some of that may reflect data we’re seeing nationally -- non-adoption rates of about 55-70 percent in certain communities: rural, low income, minorities, and the elderly.
There are a number of obstacles to adoption. Often, people don’t see the value of the Internet in their homes, or don’t have the skills necessary to take advantage of connectivity. Others cite price -- they aren’t able to afford the service or the hardware.
We have to improve the deployment and adoption numbers for three core reasons:
- Broadband is crucial to our nation’s economic success.
- Broadband helps tackle national challenges like education, health care, energy, and public safety.
- Broadband allows citizens to engage their communities and representatives more effectively.
First, let’s discuss why broadband is so crucial to our economic success. Broadband is essential for us to have an enduring engine for job creation, small-business success, and competitiveness in the U.S. and globally.
Our Information and Communications Technology (ICT) sector represents about one-sixth of the U.S. economy, and an even greater percentage of GDP growth. According to a world-wide study, a 10 percent increase in broadband penetration corresponds to a 1.2-1.5 point increase in GDP. Another study found that full broadband deployment in Arkansas could bring in over $2.6 billion to the state economy and create 8,200 new jobs.
Across market sectors, broadband has the potential to drive expanded markets as well as productivity gains and improved standard of living in a wonderful win-win for businesses and consumers.
Consider trucking. The $500 billion national trucking industry has saved $16 billion annually through the use of on-board computers -- used while not driving -- that allow companies to better track and more efficiently dispatch trucks.
Consider agriculture. High-speed Internet -- wired and wireless -- can help farmers and ranchers plan crops, sell goods and livestock, buy feed and seed, and obtain vital weather information when they need it. In fact, there is evidence that farmers can earn more, while consumers pay less, as a result of broadband-driven efficiencies.
During my first week as Chairman, I met a farmer in Erie, Pennsylvania who grew up thinking computers and connectivity had no relevance to him. He now thinks farmers can’t live without broadband -- and real-time access to weather, commodity pricing, and agricultural information -- to do their jobs successfully. One recent study put it this way: “The degree to which farmers take advantage of the New Economy will increasingly determine their competitive success.”
Broadband is also an essential part of the jobs equation. About 3 million Internet jobs are already connected to ICT -- both in the network and on the edge of the network. Consider that 600,000 Americans run small businesses through eBay all over the country, including small towns and rural America.
And consider another part of the equation on broadband and jobs -- finding a job. As of 2005, 77 percent of Fortune 500 companies did not accept paper applications for jobs posted online. In many cases, if you can’t access the Internet you can’t find out about good jobs. And increasingly, basic knowledge of the Internet is required for jobs. So Digital Literacy is an important skill that we need to foster and develop and work on together.
In addition to the economic benefits, broadband helps address what the Recovery Act calls “national purposes.” The law requires the plan to focus on the ways that broadband can help tackle national challenges like education, health care, and energy independence. It asks us to look at how broadband can advance public safety communications.
It is impossible to overestimate the importance of these topics and of the connection between broadband and success. As Senator Lincoln has said, “Broadband access is critically important to Arkansas, providing opportunities to dramatically improve the quality of life for our citizens.”
Broadband can allow students everywhere -- both in rural America and inner cities -- to access the best teachers and information, and develop the skills they need to succeed in a 21st century economy.
Broadband connectivity can also bridge critical access gaps to medical information and services. Remote monitoring and virtual diagnostics can help reduce health care costs and improve the quality of medicine, particularly in rural areas, if broadband connectivity is available.
Recently, Senator Pryor, Senator Lincoln, and members of the Arkansas delegation announced that Arkansas had received grants from the federal government to promote distance learning and telemedicine. Two examples are very instructive.
First, a grant to Baptist Health Facilities in Chicot, Van Buren, Phillips, Bradley, Pulaski, Independence and Mississippi Counties will help fund a critical care medical network connecting six rural medical centers and a major hospital hub site at Little Rock.
And second, a grant to Coassatot Community College of the University of Arkansas will help upgrade interactive classrooms and create an online learning laboratory, allowing more students to gain college-level courses without having to relocate.
There are also benefits for energy use and the environment. Smart grid technology will help America become more energy efficient and spur investment in green jobs. But broadband is needed for smart grids to work. In fact, a 5 percent increase in grid efficiency would equate to eliminating fuel and greenhouse gas emissions from 53 million cars.
Public safety also benefits from broadband. We need to continue our efforts to ensure that our nation’s first responders have mission-critical, interoperable voice communications and broadband services that meet the needs of our communities for the 21st century.
Broadband helps us stay connected to the ones we love. Just days after being sworn in as Chairman, I visited a downtown computer clinic in Cleveland, Ohio where seniors were learning how to send pictures to their grandchildren in other states. I met a woman who had found a job using the Internet, and another using it for health care information.
The final core reason for universal broadband is that it will allow citizens to engage their communities and representatives more effectively. The Recovery Act asks us to address the ways in which broadband can enhance civic participation and drive improved delivery of government services.
Our team is looking at ways to enable expert government agencies to provide people with the information they want, wherever they are. For example, in the 6 months after it launched, the Center for Disease Control’s flu.gov was viewed nearly 150 million times.
What’s more, high-speed, ubiquitous connectivity will ensure that government services are deployed more efficiently. Broadband has already allowed the government to save money by enabling online tax returns -- it costs 8 times more to process a paper return than an electronic return. The IRS found that mandating an electronic system would save more than $66 million.
Working on the National Broadband Plan has given me the opportunity to learn about the exciting things that are happening across the country. And Arkansans should be proud of the work by your political leaders.
I know well the commitment that Governor Beebe, Senators Pryor and Lincoln, and the rest of the Arkansas delegation are making to broadband and the future of Arkansas and her people. Just a little over two years ago, Governor Beebe signed the Connect Arkansas Broadband Act into law to ensure the creation of a competitive broadband infrastructure that will enhance the economic opportunities of all Arkansans.
There are real challenges here in Arkansas. According to a 2008 study that ranked states based on their ability to compete in the new economy, Arkansas ranked 47th in the nation. Recently, Senator Pryor, Senator Lincoln, and members of the Arkansas delegation announced that Arkansas will receive funding from the National Telecommunications & Information Administration (NTIA) to increase broadband access and adoption through better data collection, mapping, and broadband planning.
Everywhere I go, I see that we all share a common goal: to empower Americans with the resources and the opportunities they need to succeed in their communities, in our country, and in the world. I want to work with you on real answers for Arkansas and for the country. Please feel free to let us know about any insights or concerns that you might have. The FCC stands ready to be a resource to Arkansas as the state proceeds on these important efforts. Thank you.
The Google Book Search Settlement has received a great deal of attention. In response to opposition, the original settlement has been delayed and will now be resubmitted. In this brief paper, I address three points. First, I do a quick status update on competition issues in the case. Second, I turn to a key issue that has emerged in the commentary on the competition issues, namely, what is the right way to frame the competition policy baseline for assessing whether a new arrangement such as GBS is procompetitive? That question is of general interest to the intersection of antitrust and innovation policy and given the importance of both to the health of the economy, it is critical that we get the baseline question right.
We will be misled if we simply track expansions in output. Clever cartelists will want to cartelize new industries in their infancy, as they know that a new product innovation will inevitably raise output, even if it does so by much less than we would see in the face of full competition. And innovators will want to bundle anticompetitive features with competitive ones if they know that they are simply being judged against the pre-innovation baseline.
Third, as applied to the Google Book Search settlement itself, antitrust enforcers need to disentangle the genuine benefits of the project from anticompetitive features. Obviously, that is a conventional problem in antitrust but it means here that product innovation can’t be used as a general shield against standard antitrust analysis. A single infrastructure such as the digitized book scans can be used to offer many products simultaneously and competitive benefits from one product cannot insulate anticompetitive steps in a second product using that same infrastructure.
Download the article from SSRN at the link.
Trademark infringement law may apply to the unauthorized use of trademarks to impersonate markholders on social network sites and elsewhere. Where “brandjacking” on social networks causes confusion about the source of information, that expression may be infringing even where the imposter is not creating confusion about the source or quality of commercial products for sale. Commercial use of the mark is not explicitly required for infringement under the Lanham Act, and some courts apply the federal infringement statutes in cases involving unauthorized use of marks in noncommercial speech. If a third party uses another’s mark to falsely claim to be the markholder and indicates that the markholder is the author of expression written by that imposter, courts may find infringement if the public is confused about the source of that third party’s “information services” and believes and relies on that false statement of identity. Of course, just because a markholder has a cause of action does not mean it should file suit against an individual who uses its mark in this way.
By prohibiting unauthorized uses of trademarks that cause confusion regarding the source of information or advertising, trademark law can reduce consumer search costs. Moreover, such restrictions on use of another’s mark will not violate the First Amendment if reasonable persons believe the third party’s false statement of identity and authorship. This is not anonymous or pseudonymous speech protected by the First Amendment; it is a false statement of fact. Yet courts will harm free speech values if they apply the affiliation/sponsorship confusion doctrine to unauthorized uses of a mark in expression of information or ideas. Courts should limit the scope of trademark rights by requiring source-confusion in infringement cases involving expression.
Download the paper from SSRN at the link.
Monday, November 23, 2009
Second, Fraser and Hazelwood created some confusion over how to analyze student speech rights, and in particular which case - Tinker, Fraser, or Hazelwood - should govern the typical high school speech case. Indeed, a close reading of Morse suggests that viewpoint restrictions on core speech will certainly be subject to the Tinker standard, in which schools can prohibit speech only when it poses a very real threat to substantially interfere with school operations or would infringe on the rights of other students. In doing so, the Court stated that student speech rights must be analyzed in the context of the educational needs of schools, and, in particular, the school officials' need to maintain discipline and order. Roberts then concluded that drug abuse is a serious and real problem facing schools, justifying restrictions on student speech advocating illegal drug use, stating: The "special characteristics of the school environment," and the governmental interest in stopping student drug abuse, allow schools to restrict student expression that they reasonably regard as promoting illegal drug use. In the same way, his concurrence in Morse can be read as affirming student speech rights, but Alito saw the banner displayed by Frederick as a narrow exception, both because of the nature of the speech itself and because of the critical school interest in combating drug abuse. Thus, the type of balancing contemplated in Morse is really reserved for speech restrictions that do not involve either a school-created speech forum nor school-sponsored speech. Of the five decisions, Mergens is the only one that directly involved student speech in high schools, and the only one based on statutory, rather than constitutional, free speech rights. Parks, the Fourth Circuit held a policy unconstitutional that said a school could prohibit distribution only if the principal could "forecast substantial disruption of or material interference with school activities." This quote from Tinker suggests two possible justifications to restrict student speech, even speech that concerns core political or religious messages, or commentary on social issues. Thus, the court rejected the broader principle that any derogatory statements aimed at individuals or groups could be prohibited, stating that t-shirts saying, "Young Republicans Suck," or "Young Democrats Suck" would be protected speech, since such messages would not be "sufficiently damaging to the individual or to the educational process" to justify restrictions.
The advent of digital technology has had a profound impact on the production and distribution of child pornography. The international trade in such material is a major focus of law enforcement agencies around the world. Central to these efforts is the offence of 'possession.’ However, concepts of possession in the criminal law evolved in the context of tangible items such as drugs, and their application to intangible data presents significant challenges. Drawing upon the laws of Australia, Canada, England and the United States, this article analyses the concept of criminal possession in a digital context. While courts and legislatures are adapting to these new challenges, in some cases it is argued that the offence of possession is being stretched too far. It is suggested that some of these difficulties may be avoided by utilising an offence of 'accessing’ child pornography.
Ofcom Addresses Complaints Aimed at "Britain's Got Talent" Over Treatment Of Susan Boyle, Hollie Steele
Saturday, November 21, 2009
Friday, November 20, 2009
From the Sedalia Democrat:
The Smith-Cotton High School band had to abandon new t-shirts that showed a monkey evolving into a man--you've undoubtedly seen that image. The difference here was that the various iterations of the figures each carried a different brass instrument. The band's program theme was "Brass Evolutions."
Some parents objected, the school administration got involved, and the t-shirts were scrapped. One parent, whose child is in the band said she "didn't think evolution should be association with our school." But another said "Whatever happened to the separation of church and state?...I thought it [the shirt] was funny."
Smith-Cotton High School is a public school. Read more here.