May 2005 Archives

An Indecent Proposal

Yes, the quality and quantity of my posts here has fallen off a bit. Considering where I started, it's hard to believe it could get any worse. As I try to catch up with a backlog of information, I am going to be focusing on one subject for this next week. That subject is indecency regulation.

The starting point is a paper I wrote last semester for a seminar on Telecommunications Law:

Indecent Proposals: FCC Indecency Regulations and the First Amendment

One upcoming post will look at indecency rulings over the last five months. Another post will examine the proposals to regulate indecency on cable and satellite. Ideally, a final post should integrate all these ideas into a single coherent paper.

Copyright Office RSS Feeds

The U.S. Copyright Office offers RSS News Feeds for the latest copyright office news, copyright-related Federal Register notices and pending litigation. (also posted to The Induce Act Blog)

Law Firm IP Publications

EEJD Blog: Intellectual Property Publications by Firm: "There is a wealth of free information available on intellectual property that firms publish each month. Below is the start of a list of links to various intellectual property publications sorted by firm. Only firms that publish regularly on IP are included."

The hottest ticket

Legal Times' Tony Mauro: Lining Up for High Court's Hottest Ticket: "But which was the hottest ticket of the term's oral arguments? That honor goes to MGM Studios v. Grokster, the high-interest, high-stakes copyright dispute over peer-to-peer downloading of movies and music."

2004 Wiretap Report

The Administrative Office of the United States Courts 2004 Wiretap Report:

A total of 1,710 intercepts authorized by federal and state courts were completed in 2004, an increase of 19 percent compared to the number terminated in 2003. The number of applications for orders by federal authorities rose 26 percent to 730. The number of applications reported by state prosecuting officials grew 13 percent to 980, with 19 state jurisdictions providing reports, four fewer than in 2003, but equal to the number for 2002.

(Via beSpacific.)

Investors Supporting Spyware

Ben Edelman: Investors Supporting Spyware: "Major investment firms help support the operations of large US-based spyware companies. This page gives a summary of such companies and the investment firms supporting them."

The DC Circuit ruled today that the FCC exceeded its authority under its ancillary jurisdiction to enact a technological mandate for television receiving equipment that regulates with the use of broadcast information after than information has been received (aka the "broadcast flag"): American Library Association v. Federal Communications Commission (D.C. Cir. May 6, 2005).

I'm on my way out to an exam (Administrative Law, in fact), so here are some key snippets from the ruling:

On jurisdiction:

The Commission recognized that it may exercise ancillary jurisdiction only when two conditions are satisfied: (1) the Commission’s general jurisdictional grant under Title I covers the regulated subject and (2) the regulations are reasonably ancillary to the Commission’s effective performance of its statutorily mandated responsibilities. See 18 F.C.C.R. at 23,563. The Commission’s general jurisdictional grant under Title I plainly encompasses the regulation of apparatus that can receive television broadcast content, but only while those apparatus are engaged in the process of receiving a television broadcast. Title I does not authorize the Commission to regulate receiver apparatus after a transmission is complete. As a result, the FCC’s purported exercise of ancillary authority founders on the first condition. There is no statutory foundation for the broadcast flag rules, and consequently the rules are ancillary to nothing. Therefore, we hold that the Commission acted outside the scope of its delegated authority when it adopted the disputed broadcast flag regulations.

On standing:

In response to our decision in American Library I, petitioners submitted a brief, accompanied by 13 affidavits from individual members and individuals representing their member organizations, to demonstrate their standing. These materials included an affidavit executed by Peggy Hoon, the Scholarly Communication Librarian at the North Carolina State University
(“NCSU”) Libraries in Raleigh, North Carolina, a member of petitioner Association of Research Libraries. Affidavit of Peggy Hoon, 3/29/05, ¶ 1. Ms. Hoon’s affidavit asserts that the NCSU Libraries assist faculty members who would like to make broadcast materials available to students in distance learning courses via the Internet. The affidavit states that the NCSU Libraries currently assist a professor in the Foreign Languages and Literatures Department make short broadcast clips of the Univision network’s program, El Show de Christina, available over the Internet on a password-protected basis for use in a distance-education Spanish language course. The affidavit alleges that Internet redistribution is essential to making such clips available. See id. ¶¶ 5-10. The FCC does not dispute that the NCSU Libraries’ activities are lawful. And as petitioners point out, if the regulations implemented by the Flag Order take effect, there is a substantial probability that the NCSU Libraries would be prevented from assisting faculty to make broadcast clips available to students in their distance-learning courses via the Internet.

There is clearly a substantial probability that, if enforced, the Flag Order will immediately harm the concrete and particularized interests of the NCSU Libraries. Absent the Flag Order, the Libraries will continue to assist NCSU faculty members make broadcast clips available to students in distance- education courses via the Internet, but there is a substantial probability that the Libraries will be unable to do this if the Flag Order takes effect. It is also beyond dispute that, if this court vacates the Flag Order, the Libraries will be able to continue to assist faculty members lawfully redistribute broadcast clips to their students.

In short, it is clear that, on this record, the NCSU Libraries have satisfied the requisite elements of Article III standing: injury in fact, causation, and redressability. Therefore, the Association of Research Libraries also has standing.

And the order:

Because the Commission exceeded the scope of its delegated authority, we grant the petition for review, and reverse and vacate the Flag Order insofar as it requires demodulator products manufactured on or after July 1, 2005 to recognize and give effect to the broadcast flag.

EDIT (5:10pm): My brain is fried, so here is Ernest Miller's post with analysis and links: Victory in Broadcast Flag Case! FCC Has No Authority Says Court

Information Literacy and the Law

In his latest column, Declan McCullagh considers Tom DeLay's odd attack on Justice Kennedy and internet research. McCullagh thinks that the bug man may have actually, if inadvertently, raised an issue worthy of further examination: Defending DeLay's Internet assault: "But there are also problems with unfettered Googling from the bench. Is it appropriate for judges to investigate the backgrounds of jurors, perhaps even scrolling through their home pages and family photo albums? Should judges scour the Net for reports on a topic rather than relying on traditional rules of evidence?"

The examples that McCullagh finds do not lend much support to the idea that there is a wide-spread or systemic misuse of internet resources by judges, but the overall idea does raise the issue of information literacy among lawyers. Recently, I discussed information literacy and its important role in educating today's students in a post at my other blog.

Lawyers need to be savvy in terms of finding, using, and properly citing internet sources. Fortunately, most lawyers are sufficiently inquisitive and well-read to be able to investigate the accuracy and credentials of an internet source. In fact, because lawyers are so risk-averse, many likely choose to be more skeptical of internet resources than is necessary.

Of course, the rules of evidence check the misuse of unsubstantiated sources. Appellate review provides another check (improper reliance on bad sources should be considered an abuse of discretion).

Doonesbury and DRM

How do you keep unscrupulous publications from pirating your strip? Doonesbury has an answer.