Thursday, January 31, 2013
The FCC has announced a tentative agenda for its meeting on February 20.
Federal Communications Commission Chairman Julius Genachowski announced that the following items will be on the tentative agenda for the next open meeting scheduled for Wednesday, February 20, 2013: Improving Wireless Coverage for Consumers Through the Use of Signal Boosters: The Commission will consider a Report and Order to significantly enhance wireless coverage for consumers, while protecting wireless networks from interference by adopting new technical, operational, and registration requirements for signal boosters. Increasing the Amount of Spectrum Available for Unlicensed Devices in the 5 GHz Band: The Commission will consider a Notice of Proposed Rulemaking to substantially increase the amount of unlicensed spectrum available to accelerate the growth and expansion of new Wi-Fi technology offering consumers faster speeds and less network congestion at Wi-Fi hot spots. The Open Meeting is scheduled to commence at 10:30 a.m. in Room TW-C305, at 445 12th Street, S.W., Washington, D.C. The event will be shown live at FCC.gov/live.
Lilian Edwards, University of Strathcylde Law School, has published Section 127 of the Communications Act 2003: Threat or Menace? in volume 23 of the SCL Journal (November 2012). Here is the abstract.
Section 127 of the Communications Act 2003 , once one of the more obscure provisions of the UK cybercrime world, has become notorious in 2012 for being used capriciously to suppress online speech in causes celebre such as the "Twitter joke trial" of Paul Chambers. After a brief survey of recent high profile cases, the article surveys the legislative background to s 127 and suggests a provision designed for post and telecoms in an era of state monopoly services is being misapplied to the many to many private infrastructure of Internet communications.Download the article from SSRN at the link.
Timothy Zick, William & Mary Law School, is publishing The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties (Cambridge University Press, forthcoming). Here is the abstract.
This is the Table of Contents, Introduction, and Chapters 1 and 2 of my forthcoming book, which is entitled "The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties" (forthcoming, Cambridge University Press). The book examines the relationship between the First Amendment to the United States Constitution and international borders. In contrast to more traditional and provincial accounts, it reveals a First Amendment that is critical to robust cross-border conversation and commingling and the global spread of democratic principles, protective of expressive and religious liberties regardless of location, influential across the world despite its exceptionalist character, and a core justification for respectful engagement with the liberty regimes of other nations. This more cosmopolitan First Amendment is the product of an array of social, historical, political, technological, and legal developments. Its principles and justifications are examined through analysis of the First Amendment’s relationship to foreign travel, immigration, cross-border communication and association, religious activities that traverse international borders, the conduct of international affairs and diplomacy, and conflicts between foreign and U.S. speech and religious liberty models.
Wednesday, January 30, 2013
Harold Anthony Lloyd, Wake Forest University School of Law, has published Publish and Perish? Handling the Unreasonable Publication Agreement. Here is the abstract.
Using hypothetical publication agreement drafts, this article explores copyright, warranty, representation, indemnity and other traps awaiting unwary authors. Exploring legitimate concerns of both authors and publishers, this article outlines parameters of reasonable agreements.Download the paper from SSRN at the link.
Tuesday, January 29, 2013
Monday, January 28, 2013
FCC Chairman Julius Genachowski today announced new actions as part of the Broadband Acceleration Initiative, a comprehensive effort to remove barriers to broadband build-out, including streamlining the deployment of mobile broadband infrastructure, such as towers, distributed antenna systems (DAS) and small cells.
The Commission defined and clarified a technical provision in the Middle Class Tax Relief and Job Creation Act of 2012 regarding local review of requests to modify an existing wireless tower or base station. This provision will accelerate deployment and delivery of high-speed mobile broadband to communities across the nation. This action will create greater certainty and predictability for providers that today invest more than $25 billion per year in mobile infrastructure, one of the largest U.S. sectors for private investment. The Commission today also launched a proceeding to expedite placement of temporary cell towers – cells on wheels (COWs) and cells on light trucks (COLTs) – that are used to expand capacity during special events, such as the Inauguration or the Super Bowl. Chairman Genachowski also announced actions in the coming months to further streamline DAS and small cell deployment; examine whether current application of the tower siting shot clock offers sufficient clarity to industry and municipalities; and begin developing model facility siting rules for localities.
Each of these actions would contribute to faster, more efficient deployment of wireless infrastructure. Chairman Genachowski said, “Providing more certainty to industry and municipalities, and more flexibility to carriers to meet extraordinary, short-term service needs will accelerate private and public investment to strengthen our nation’s communications networks. Just as is the case for our nation’s roads and bridges, we must continue to invest in improvements to cell towers and transmission equipment, in order to ensure ubiquitous, high-speed Internet for all Americans. To keep pace with technological advances, such as the advent of small cells, and to lay the groundwork for new developments, our policies must continue to adapt.”
Thursday, January 24, 2013
George C. Christie, Duke University School of Law, has published Freedom of Expression and Its Competitors at 31 Civil Justice Quarterly 466 (2012). Here is the abstract.
The recognition of an increasing number of basic human rights, such as in the European Convention on Human Rights, has had the paradoxical effect of requiring courts in the common-law world to consider whether the extensive protection given by the common law to expression that was not false or misleading must be modified to accommodate these newly recognized basic rights. The most important of these newly recognized rights is the right of privacy, although expression has other competitors as well, such as what might be called a right to be spared the emotional trauma caused by abusive language. This article examines the growing differences between the ways the courts in the United States and the United Kingdom have handled these conflicts. In the United Kingdom there is a growing body of law requiring speech that is challenged for invading some other recognized basic right to survive a judicial determination that the expression in question concerns some matter of legitimate public interest. For the moment the United States has not taken that route but, as the article points out, there are some hints in its more recent decisions on freedom of expression that the United States Supreme Court might modify its expansive view of the ambit of freedom of expression to permit some expression to be successfully challenged on the ground that it does not concern a matter of “public concern” — a development I would not welcome even if it narrowed the differences between the United States and Europe.
Download the article from SSRN at the link.
Robert E. Thomas, University of Florida, Warrington College of Business Administration; Business Law & Legal Studies, and Cassandra Aceves, University of Michigan, Ann Arbor, have published Vanquish Copyright Pirates, Patent Trolls, and Content Counterfeiters: Protecting Intellectual Property Through Legislative Change. Here is the abstract.
The United States has gone from a net – and frequently illegal – importer of intellectual property (IP) to the World’s biggest IP supplier in a historically short time. During the past quarter century, IP holders have teamed with government entities to support international initiatives and legislation to combat the unauthorized acquisition of IP. These battles – which primarily targeted activity in developing and non-Western nations – were extremely successful. However, the intellectual property coalitions that fought these battles have splintered with copyright and patent holders pursuing initiatives that advance their divergent interests. This paper develops a theory of how IP interests groups employ legal and institutional mechanisms to exclude unauthorized use of their intellectual property and how the success of such actions varies with the strength of supporting and opposing coalitions. Initial gains came with comparative ease because a cohesive IP coalition faced little opposition. This coalition is now splintered with sub-IP interest groups facing differing levels of opposition. Until now, copyright interest groups has enjoyed the most success in enacting legislative change through the cohesiveness of their coalition. Patent interests groups, which are splintered, have struggled to obtain comparatively modest patent law reforms. However, with the failed push to implement ACTA and the success of the patent sector in getting the AIA enacted, results achieved by the respective interest groups have changed. The theory developed in this paper provides a framework for analyzing these interactions and identifies the likely nature and probable success of future IP legislative initiatives.
Download the paper from SSRN at the link.
Wednesday, January 23, 2013
András Koltay, Peter Pazmany Catholic University; Hungarian Academy of Sciences, has published Hate Speech and the Protection of Communities in the Hungarian Legal System. Here is the abstract.
The Hungarian notion “gyűlöletbeszéd” is a literal translation of the applicable terminology (hate speech) originally used in the United States of America. According to Gábor Halmai, “this type of communication includes acts of speech by which the speaker — usually driven by prejudice or even hatred — expresses his or her opinion of various racial, ethnic, religious, or sexual groups in society, or of the member of such groups, which opinion may insult the members of the given group and may incite hatred in society against that group.” According to the Recommendation by the Council of Europe, “the term ‘hate speech’ shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.” The term “hate speech” itself is not used in legislation; for the purposes of written law, this term is covered by the crime of incitement against a community (Article 269 of the Criminal Code), supplemented by the crimes of the use of symbols of despotism (Article 269/B of the Criminal Code), public denial of the sins of the National Socialist (Nazi) and Communist systems (Article 269/C of the Criminal Code), and violation of national symbols [Article 269/A of the Criminal Code]. Of course, these crimes are not specific to the media, meaning that they may be committed by means other than via the media, but they constitute certain limitations to the freedom of the press. Furthermore, the Press Freedom Act lays down various provisions against hateful expressions.
Download the paper from SSRN at the link.
Tuesday, January 22, 2013
Raphael Cohen-Almagor, Director, Middle East Study Group, University of Hull, has published Is Law Appropriate to Regulate Hateful and Racist Speech: The Israeli Experience at 27 The Israel Studies Review 41 (Winter 2012).
This article examines the tension between liberalism and Orthodoxy in Israel as it relates to censorship. The first section aims to explain Israel’s vulnerability as a multicultural democracy in a hostile region, with significant schisms that divide the nation. The next section presents the dilemma: should Israel employ legal mechanisms to counter hate speech and racism? The third section details the legal framework, while the fourth reviews recent cases in which political radicals were prosecuted for incitement to racism. The final section discusses cases in which football supporters were charged with incitement after chanting “Death to Arabs” during matches. I argue that the state should consider the costs and risks of allowing hate speech and balance these against the costs and risks to democracy and free speech that are associated with censorship.
Download the article from SSRN at the link.
Steven Greenhouse of the New York TImes reports on employer attempts to discourage negative online employee comments about working conditions and employer policies and the National Labor Relations Board's response. Mr. Greenhouse notes that the NLRB has judged many such attempts to be against the law. The agency "says workers have a right to discuss work conditions freely and without fear of retribution, whether the discussion takes place at the office or on Facebook." Here are links to the agency's recent reports on the issue.
Report No. 1 (link to PDF within press release)
Report No. 2 (link to PDF within press release)
Report No. 3 (link to PDF within press release)
Friday, January 18, 2013
Toshiyuki Kono and Paulius Jurcys, both of Kyushu University, Graduate School of Law, have published International Jurisdiction over Copyright Infringements in the Cloud. Here is the abstract.
The emergence of the Internet, and more recently cloud computing, has tremendous technological, economic, social as well as cultural effects. Such technological development certainly affects legal framework and calls for careful assessment whether, and, if so how, the existing legal principles and doctrines should be adjusted. Despite the fact that cloud-based technologies have swiftly coated almost every aspect of communication, the discussion regarding its legal implications has been very fragmentary. This paper focuses on a rather specific aspect concerning the intersection of private international law and intellectual property rights in the cloud environment. Although the Internet is one of the most economically rewarding markets for the exploitation of the intellectual property, the ubiquity of the world wide web is also associated with a number of risks. One of the risks which should be considered by right holders and intermediaries operating in the digital environment concerns potential litigation over the exploitation of intellectual property rights before a court of a foreign state. In private international law terms, this risk is known as international jurisdiction: in disputes between the parties from different states or disputes involving foreign subject matter, which court should adjudicate the case? Under what conditions should a national court of one state exercise its jurisdiction and decide a multi-state dispute? National laws usually contain certain rules or principles which guide the courts in deciding whether the jurisdiction should be asserted or not (e.g., defendant’s residence or commitment tortious acts in the forum state). The exercise of jurisdiction in multi-state intellectual property disputes has been subject to great controversies. Even the most distinguished courts in various countries stumbled when dealing with intricate quandaries involving cross-border exploitation of intellectual property rights. The exercise of jurisdiction over multi-state disputes involving territorially limited intellectual property rights has become even more complex with the advancement of digital communication technologies. Some of the underlying difficulties are discussed in this chapter which starts with a short illustration how cloud computing affects the exploitation of intellectual property assets. This discussion is followed by a closer analysis of the main principles which are employed by the courts across the Atlantic in deciding when to assert jurisdiction over multi-state intellectual property disputes. The fourth section poses a more general question of whether the existing legal framework is apt for the disputes involving cloud-related controversies. Finally, the activities which have been conducted by a special Committee under the auspices of the International Law Association are discussed.
Download the paper from SSRN at the link.
Nicholas A. Primrose, Barry University School of Law, has published Has Society Become Tolerant of Further Infringement on First Amendment Rights? Here is the abstract.
The First Amendment was written as a general prohibition on infringement of certain rights. This paper focused mostly on freedom of speech that has religious undertones. Part I of this paper introduces the First Amendment, including some historic interpretation and understanding of why the First Amendment is important to our society. Part II of this paper focuses on what the author deems three important events that are shaping society's current view of the First Amendment. Part II discusses the current events of the Ground Zero Mosque, the Westboro Baptist Church protesting and subsequent actions, and the comments from Chick-fil-A CEO Dan Cathy regarding same-sex marriage. The author analyzes these three events to discuss concerns over society becoming tolerant of infringement on the First Amendment. Part III of this paper discusses some considerations for society. The need to protect the 'marketplace of ideas' because that is what the First Amendent was designed to protect. FInally, the paper touches on how social media and new trends in speech should also protect the idea of open public discourse. Overall, reading this paper will give you an understanding of how even though we may disagree with some speech, protecting the open debate outweighs censoring speech.
Download the paper from SSRN at the link.
The Third Circuit has affird a lower court's ruling that a Pennsylvania state law prohibiting the media from entering a polling place to "gather news" does not infringe on the First Amendment. In PG Publishing Company v. Aichele, decided January 15, 2013, the Court held that,
[while] Appellants are therefore correct in arguing that the First Amendment encompasses a right of access for news-gathering purposes....the press is [not] entitled to any greater protection under this right than is the general public. The Supreme Court's pronouncement on this issue is unequivocal: "[T]he First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.".... Thus, while the First Amendment does protect Appellant's right of access to gather news, that right does not extend to all information.
Importantly, we do not address here limitations on access to a forum for speech purposes; indeed, we are not concerned here with expressive conduct or speech at all. ...Rather, our focus is on access to information.Thus, we do not believe that the traditional forum analysis is apposite here. If we were to apply such a framework, the government would be free to shut down nonpublic fora completely, thereby hiding any activities behind a veil of secrecy. It cannot be that the First Amendment would countenance such a course of action....
For this reason, we consider Appellant's citation to cases such as Munro, which focused on exit-polling, to be of little help. ...The analysis that these courts apply to laws curtailing exit-polling activities — i.e., the traditional forum analysis — is therefore distinct from what is necessary here.
Appellant also urges that the instant case should be evaluated under the rubric of a prior restraint. We disagree. While it is true that restricting access to information may work a prior restraint on speech... this principle is not unlimited. ...
For this reason, we distinguish those cases cited by Appellant that concern court orders prohibiting members of the press (and others) from contacting jurors. ... Here, the government is not restricting access to information per se; rather it is restricting access to a particular proceeding (i.e., the voting process that occurs inside polling places). Unlike the juror-interview cases, therefore, Appellant is free to contact voters and individuals working in a polling place in order to obtain information about the goings-on inside. There is no blanket gag order curtailing access to this information....
Instead, we find that the analysis in this case turns on the question of whether the source of information (here, access to the polling place) should be "available to members of the public generally." Thus, we must determine the proper analytical framework for evaluating this question. As the discussion below demonstrates, the matter here concerns information about government bodies, their processes, and their decisions. As such, our analysis of the public's right to access the source of this information turns on both historical and structural considerations. We must balance the interests of the government on the one hand and those of the press and public on the other.
The Supreme Court has suggested that the existence of a First Amendment right to gather news (i.e., the right of access to the source of information or a government process) is best evaluated via a balancing test. The necessity of such a test was first noted in Branzburg v. Hayes, where a reporter had claimed that testifying before a grand jury about confidential sources would violate his right to gather news.
Having set the operative framework, the plurality then engaged in a balancing inquiry to determine which set of rights should prevail. In his concurrence, Justice Powell summarized the sentiment of the plurality and his own position: "The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct."
Subsequently, the Court embarked on a similar balancing inquiry to uphold a California Department of Corrections regulation that prohibited the press and others from interviewing specific inmates. ... Prior to the enactment of the regulation in question, journalists "had virtually free access to interview any individual inmate" while non-press members of the public did not benefit from such an unrestricted visitation policy.... Journalists claimed that the new regulation, by limiting their news gathering activities, violated the First Amendment protections for freedom of the press. ...Holding that the press does not enjoy any greater constitutional protection than does the general public, the Court ultimately agreed with the prison administrators that the interest in preserving security in the prisons outweighed the press's right to gather news, partly based on the fact that the press had an alternative means of obtaining this information. ...
But while the opinions in Branzburg and Pell presented an ad hoc approach, the case of Richmond Newspapers, Inc. v. Virginia suggested a more standardized framework for evaluating the right of access to information about government processes. ...In that case, reporters sought access to a courtroom that had been closed to the public to prevent undue dissemination of witness-related information, arguing that there were less restrictive means for ensuring a fair trial. The plurality reaffirmed the First Amendment's protection of the press and recognized that the First Amendment necessarily also "'prohibit[ed] government from limiting the stock of information from which members of the public may draw.'" ...Finding that access to trials could not be "foreclosed arbitrarily," the Richmond Newspapers opinion suggested the framework for a more meaningful test on restrictions in nonpublic fora such as a courtroom. ...
The framework articulated in Richmond Newspapers asks us to consider whether a "'place and process have historically been open to the press and general public.'" ... This analysis begins with a review of historical practices associated with a particular place or process; this inquiry is objective. ... Thus, for example, in Capital Cities we held that "the relevant historic[al] practice in this case is not specifically that of Pennsylvania's [D.E.R.]" Id. Instead, after considering Richmond [*42] Newspapers, Globe and Press-Enterprise, we held that "[i]n each of these cases, the Court looked not to the practice of the specific public institution involved, but rather to whether the particular type of government proceeding had historically been open in our free society." Id. (emphasis added).
The Richmond Newspapers framework also tasks us with considering "whether public access plays a significant positive role in the functioning of the particular process in question."
In the case before us, we begin by noting the rather obvious fact that openness of the voting process helps prevent election fraud, voter intimidation, and various other kinds of electoral evils. ...Of course, in situations where the press is not geographically far removed from the proceedings anyway, the benefits of additional oversight are inversely proportional to the distance of the press. The situation in Pennsylvania is a fine example: The press (like the general public) is only 10 feet away from the polling place, and we have no tangible or discernible evidence of how the public good would benefit so much more from the press being inside the room, rather than several paces away.
We agree that openness in a situation where new legislation is being implemented or tested would generally serve the public good. It implicates several of the broad categories recognized in Simone, including the "promotion of informed discussion of governmental affairs by providing the public with [a] more complete understanding of the [proceeding]."
We therefore consider this as a factor weighing in favor of satisfying the "logic" prong.
The experience and logic test requires that we also examine the potential dangers inherent in openness. Of greatest concern to us is that access for one is access for all. While Appellant urges that its reporters should be permitted to access the polling place for purposes of gathering news, there is no constitutionally valid way of limiting the right of access only to Appellant. Finding a right of access for one member of the press necessarily means that all other members of the press must or should share in that right.
This brings us to the next concern, raised at oral argument: Who is a member of the press? Even if we were inclined to find a special First Amendment right for the press in this case (which we explicitly refuse to do), the class of persons to whom such a right is applicable is almost boundless. Counsel for Appellant could not divine a way to confine the potential beneficiaries of a ruling in its favor.
Moreover, there is a very real possibility that the presence of reporters during the sign-in period, when individuals are necessarily exchanging personal information in preparation for casting a private vote, could concern, intimidate or even turn away potential voters.
On balance then, we find the "logic" prong of this inquiry disfavors finding a constitutionally protected right of access to the voting process. We therefore find that both prongs of the "experience and logic" test militate against finding a right of access in this case. As in North Jersey, we note that while the Constitution does not provide protection under the First Amendment, "there is, as always, the powerful check of political accountability."
Read the entire ruling here.
Thursday, January 17, 2013
The FCC has issued an order, dated January 3, 2013, allowing Liberty Media to obtain control of Sirius XM. Here's an excerpt of the agency's ruling.
Pursuant to Section 310(d) of the Communications Act, n29 we must determine whether the applicants have demonstrated that the proposed transfer of control will serve the public interest, convenience, and necessity. In making this determination, we first assess whether the proposed transaction complies with the specific provisions of the Communications Act, other applicable statutes, and the Commission's rules. If the proposed transaction would not violate a statute or rule, we next consider whether it could result in public interest harms by substantially frustrating or impairing the objectives or implementation of the Communications Act or related statutes. We then employ a balancing test weighing any potential public interest harms of the proposed transaction against any potential public interest benefits. The Applicants bear the burden of proving, by a preponderance of the evidence, that the proposed transaction, on balance, will serve the public interest. Our public interest evaluation necessarily encompasses the "broad aims of the Communications Act," which include, among other things, a deeply rooted preference for preserving and enhancing competition in relevant markets, accelerating private sector deployment of advanced services, ensuring a diversity of license holdings, and generally managing spectrum in the public interest. Our public interest analysis may also entail assessing whether the merger will affect the quality of communications services or will result in the provision of new or additional services to consumers. Our competitive analysis, which forms an important part of the public interest evaluation, is informed by, but not limited to, traditional antitrust principles. The Commission considers whether a transaction will enhance, rather than merely preserve, existing competition, and examines potential and future competition and its impact on the relevant market.
Liberty Media does not currently provide any media distribution services that directly compete with the satellite radio services offered by Sirius, and thus the proposed transfer of de jure control to Liberty Media does not present any horizontal competition issues. To the extent that Liberty Media provides programming to terrestrial radio, for example, coverage of the Atlanta Braves baseball team, Liberty Media is unlikely to disadvantage terrestrial radio programmers by not providing or delaying Atlanta Braves programming to them given the order of magnitude of programming fees and franchise value at risk that would far outweigh profits that would flow to Liberty Media from increased Sirius subscriptions. Thus, we find that no substantial vertical concerns are raised by Liberty Media's programming interests. The Commission applies a "sliding scale approach" to evaluating public interest benefit claims. Under this approach, where potential harms appear "both substantial and likely, the Applicants' demonstration of claimed benefits also must reveal a higher degree of magnitude and likelihood than we would otherwise demand." On the other hand, where potential harms appear to be less likely or less substantial, as in this case, we will accept a lesser showing. n40 In this case, Liberty Media has not provided any evidence of specific benefits, instead relying upon the general economic benefits accruing from facilitating investment in FCC licensees and permitting investors to realize the full value of their investments. As we do not find substantial public interest harms with this proposed transaction, we find the general benefits that are likely to result from the transfer of control provide a sufficient basis to conclude that the transaction will serve the public interest.
Upon review of the Application and the record in the proceeding, we conclude that consent to the proposed transfer of control is in the public interest.
This article is an edited transcript of Professor Graeme W Austin’s Inaugural Lecture, delivered in the Council Chamber of Victoria University of Wellington on 15 November 2012. Professor Austin was appointed Chair in Private Law in the Faculty of Law in November 2010. This lecture explores claims that in copyright law, the public domain is necessarily in opposition to proprietary rights, and suggests that in many contexts the incentives offered by copyright contribute to the vibrancy and volume of material that is available for downstream creativity and innovation. Drawing on his earlier work on the relationship between human rights law, Professor Austin’s lecture advances the idea that cognisance of the human rights dimensions of intellectual property, including creators’ human rights, should inform conceptions of the property domain of copyright law. The lecture concluded with a warning against the “Walmartization” of copyright, according to which the only policy concern is lowering the price that consumers pay for copyright-protected material.
Download the paper from SSRN at the link.