I may be here…

I may be physically back in the city after skiing, but my mind certainly isn’t…
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This is mainly a test to see if the upgrade to Movable Type 3 works. Things may be funky around here for a while.

Reason interviews Michael Powell

Reason interviews FCC Chairman Michael Powell: The Reluctant Planner: FCC Chairman Michael Powell on indecency, innovation, consolidation, and competition.
Powell on public support for structural broadcast license ownership regulations: “Look at some of the groups who are most effectively mobilized against us. We’ve never heard of them here at the FCC. I don’t know who Code Pink and MoveOn.org are. In many ways, the anti-war movement suddenly came to the FCC. And that was a hard thing to have seen in advance”
On unlicensed spectrum and WiFi: “the history of the FCC is, when something happens that it doesn’t understand, kill it. We tried to kill cable. We tried to kill long-distance. When [MCI founder] Bill McGowan starting stringing out microwave towers that threatened AT&T, the FCC tried to stop him. The FCC tried to kill cable because it was going to threaten broadcasting. I don’t want to make those mistakes.”
On the broadcast flag: “I’m not a copyright expert. I have no interest in becoming a place to resolve digital copyright issues more broadly.”
On Brand X: “The Brand X decision is the scariest and worst decision that exists on the books today for the future of the Internet. I think it’s been underobserved and underappreciated how dangerous it is. It says that every Internet transport provider just became a telephone company. That means broadband over power line, that means WiFi, that means ultrawideband, third generation wireless. The costs to consumers in the cable industry alone are breathtaking.”
“I think it will be increasingly difficult to argue for content-premised legislation for broadcasters only.” But Powell goes on to confuse content-premised regulations with structural ownership regulations in the next sentence when discussing the impact of MoveOn.org. The First Amendment does not prohibit the kind of media ownership regulations that the public supports, but does prohibit content-based regulations.

Napster to go “all you can download”

Not quite in the same way as old Napster, but Napster will introduce an “all-you can download” monthly subscription plan next year. Engadget reports:
Napster’s all-you-can download monthly subscription plan

It looks like Napster is going to be the first to take the plunge and use Microsoft’s new digital rights management system (codenamed Janus) that lets online music stores rent, rather than sell, downloads to people. We know what you’re thinking, and honestly, we don’t like the idea of renting music either, but this time you can’t mess with the price—for fifteen bucks a month you can download as many songs from Napster as you want and copy them on your MP3 player as long as you keep paying the monthly fee (or someone figures out how to hack the DRM).

If successful, this type of service will end up converting music (from a consumer standpoint) from a product to a service with a monthly subscription fee… Interesting…

Back that A(ss/zz) Up

Does the phrase “back that ass up” possess enough expressive creativity to be copyrighted? We may never know, since the Fifth Circuit decided its appeal in Positive Black Talk v. Cash Money Records on a plain error review of the jury instructions on probative similarity and the relationship between access and similarity rather than on originality of the key phrase.
How Appealing: “This appeal arises out of a dispute concerning the popular rap song Back That Azz Up.”

One BILLION dollars and other spam news

How big of a problem is spam? It may account for as much as 93 percent of all email volume. It certainly seems as if we get 93 spams for every legitimate email here at AndrewRaff.com World HQ. Fortunately, a federal court and a regulatory agency are in action, fighting the rising tide of spam.
The AP reports: Judge Awards $1 Billion in Spam Lawsuit: “A federal judge has awarded a Clinton [Iowa] Internet service provider over $1 billion in a lawsuit against companies that used the service provider’s equipment to send spam” District Judge Charles R. Wolle filed the default judgments against three companies under the Federal RICO Act and the Iowa Ongoing Criminal Conduct Act.
FTC issued final rules defining what consitutes the “primary purpose” of a commercial email message. Federal Register Notice. Press Release

Some of the criteria for determining whether a message is primarily a commercial message include:

  • For e-mail messages that contain only the commercial advertisement or promotion of a commercial product or service (“commercial content”), the primary purpose of the message will be deemed to be commercial;
  • For e-mail messages that contain both commercial content and “transactional or relationship” content, the primary purpose of the message will be deemed to be commercial if either:
    1. a recipient reasonably interpreting the subject line of the e-mail would likely conclude that the message contains commercial content; or
    2. the e-mail’s “transactional or relationship” content does not appear in whole or substantial part at the beginning of the body of the message;
  • For e-mail messages that contain both commercial content and content that is neither “commercial” nor “transactional or relationship,” the primary purpose of the message will be deemed to be commercial if either:
    1. a recipient reasonably interpreting the subject line of the message would likely conclude that the message contains commercial content; or
    2. a recipient reasonably interpreting the body of the message would likely conclude that the primary purpose of the message is commercial.

    Factors relevant to this interpretation include the placement of commercial content in whole or in substantial part at the beginning of the body of the message; the proportion of the message dedicated to commercial content; and how color, graphics, type size, and style are used to highlight commercial content; and

  • For e-mail messages that contain only “transactional or relationship” content, the message will be deemed to have a “transactional or relationship” primary purpose

Useless thoughts

Law students: Don’t leave your 48-hour takehome exam until the last weekend of final exams. You’re just going to want to sleep instead.
Law profs: Don’t give 48-hour takehome exams. I think the best exam format that I have had is the floating 8-hour takehome exam. 8 hours is long enough to put together a reasonably well thought out piece of writing and proofread, but still a relatively short period of time. The take-home makes it possible to find a comfortable place to sit, work with some music and a snack.
One more piece of advice for law students: avoid 2-credit classes as much as possible. They involve just as much work as 3 or 4 credit classes…

Dark Helmet

The big trend in gadgets today is embedding headphones in headwear. Giro makes ski helmets with integrated headphones. Burton sells a snowboard helmet with headphones and a Headphone Beanie.
Where’s the helmet with the built-in bluetooth mobile phone headset? That’s technology I could use. While skiing, I wear a helmet. Sometime last year, I was sitting on a chairlift and heard my mobile phone ring in my jacket pocket. After fishing the phone out of my pocket, I pressed the answer button and held the phone up to my head only to have it smack against the side of the helmet. I quickly remembered that I was wearing a helmet and that having the ski helmet between my ear and the phone makes it impractical, if not impossible to actually answer the phone.
Why not have a bluetooth headset built into the ski helmet? That would not only make it possible to answer the phone, but eliminate the need to fish in one’s pocket for the phone. For the one time a year it would come in handy, such a helmet would not justify the extra expense. Plus, wouldn’t it be annoying to have to change the battery in a helmet?