I Want My DTV

Sen. John McCain (R-AZ) introduced S.2820, “A bill to ensure the availability of certain spectrum for public safety entities by amending the Communications Act of 1934 to establish January 1, 2009, as the date by which the transition to digital television shall be completed, and for other puropses.”
Wired News: Uncle Sam Wants Your Airwaves 

The bill highlights a congressional conundrum. On one hand, lawmakers are loath to turn off analog signals all at once, which would render an estimated 45 million analog TV sets — those not hooked up to a cable or satellite service or to a digital-to-analog converter box — utterly useless. And they are reluctant to spend money on any program that smacks of corporate favoritism.

Instead of waiting for the marketplace to set the pace of transition to digital television, the legislation would spend $1 billion to compensate Americans who rely on over-the-air broadcast television for analog sets and lack cable, satellite or digital TV tuners.
In order to ease the transition to DTV, the FCC granted television broadcast licensees additional spectrum, at no cost, in order to enable a transition period where both analog and digital signals are broadcast, with the intention that the licensees would return the extra spectrum at the end of a brief transition period.
The transition period to DTV is occurring much more slowly than initial forecasts. Under the current law, broadcasters can keep the analog spectrum until 2007 or until after at least 85 percent of households can receive broadcast DTV signals, whichever comes last. That transition will not occur by 2007 at current rates. eMarketer predicts that only 60.4% of households will have the capability to receive DTV by 2007.
The extra spectrum that is used by broadcasters during the transition period would provide substantially more benefits the public if it is auctioned off to the highest bidder or used for public services. The auctions would likely generate significantly more revenue than the $1 billion needed to compensate analog television owners.
For discussion: would a sudden transition to digital broadcast violate the Takings Clause if analog television owners are not compensated?
Before the text of the bill has even been posted to Thomas, Wired News reports: Broadcasters Gut Digital TV Bill

n a markup of the bill in the Senate Commerce Committee on Wednesday, Sen. Conrad Burns (R-Montana), along with Sen. Ernest “Fritz” Hollings (D-South Carolina), successfully put forth an amendment erasing the 2009 deadline favored by McCain. It also would require the broadcasters to give up just four 6-MHz channel slots in the UHF band (TV channels 63, 64, 68 and 69).
Under the amendment, which the committee passed in a 13-9 vote, the broadcasters wouldn’t have to give anything back at all in a particular market if the Federal Communications Commission concluded that such a move would create a “consumer disruption” — the two key words. Critics fear broadcasters could get that ruling in many markets.

The Governator asks to see ID

The San Fransisco Chronicle reports: Governor signs Internet piracy bill / E-mail address required to share movies, music online

Aiding the industry that helped him gain worldwide fame, Gov. Arnold Schwarzenegger signed legislation Tuesday aimed at discouraging online piracy by requiring anyone disseminating movies or music on the Internet to disclose their e-mail address.
California file sharers who trade songs or films without providing an e- mail address will be guilty of a misdemeanor, under the first-in-the-nation measure that could make it easier for law enforcement to track down people who illegally download copyrighted material.

The bill is SB1506.
Previously: California to force file sharers to wear name tags.

Regulating VOIP

Yesterday, the Senate Commerce, Science, and Transportation Committee passed a Voice Over Internet Protocol Bill.
VOIP Regulatory Freedom Act of 2004 (S. 2281) regulates VOIP at the federal level and preempts state law with three major exceptions. States may still enforce laws and regulations of general applicability, including consumer protection laws and prohibitions against fraud and unfair trade practices. States and local governments may still require 911 and E911 services. States may still regulate transmission facilities and require VOIP providers to pay compensation to incumbent carriers for the use of facilities and contribute to the universal service fees. The bill does not affect VOIP telephony providers obligations under CALEA.
The bill requests a report from the GAO in order to assess:

  • technical capability of law enforcement to intercept and analyze IP transmissions
  • problems encountered by law enformcement when intercepting communications over the Internet or using IP
  • assessment of options for law enforcement agencies to acquire the skills and equipment necessary to analyze Internet communications
  • assessment of the first 10 years of CALEA implementation, compliance along with a cost-benefit analysis.

From the FCC, the bill requires a study assessing the first 10 years of CALEA.
Thomas: Bill Summary and Status
News.com: Senate panel embraces state VoIP taxes

ut in an unexpected twist, Sen. Byron Dorgan, D-N.D., persuaded the committee to adopt an amendment that permitted states to regulate VoIP services in two ways: levying taxes to pay for universal service and for compensating traditional telephone companies for the use of their phone lines through so-called access charges.

Law Practice Today: Everything You Need to Know about VoIP

The Act formerly known as Induce

Ernest Miller: The Obsessively Annotated Introduction to the INDUCE Act
News roundup at FurdLog: IICA (née INDUCE) Act Coverage
Chirs Rush Cohen: INDUCE Act inducing me to do lots of research
EFF lawyers drafted a fake complaint which could be filed if the Induce Act passes: Prelude to a Fake Complaint

When the lawyers at EFF first sat down and asked “Whom could we sue under the Induce Act if we were an abusive copyright holder?” the answer was clear: pretty much everybody. Playing the devil’s advocates, we knew we could draft a legal complaint against any number of the major computer or electronics manufacturers for selling everyday devices we all know and love—CD burners, MP3 players, cell phones—and that with that complaint, we could file a lawsuit that would survive any attempt to dismiss it before trial, costing the targeted company up to $1,000,000 per month in legal fees alone. The Induce Act is a nasty, brutish stick in the hands of the wrong plaintiff.

Induce Act Roundup

Fred von Lohmann broke the news that song writing Senator Orrin Hatch plans to introduce the awkwardly-named INDUCE Act (“Inducement Devolves into Unlawful Child Exploitation Act of 2004”), which amend §501 of the Copyright Act to add inducement to copyright infringement as another ground for copyright infringement. von Lohmann:

Even a moment’s reflection should make the danger to innovators clear — you now have to worry not just about contributory and vicarious liability, but an entirely new form of liability for building tools that might be misused. It will be interesting to see whether the bill expressly precludes any Betamax-type defense

Susan Crawford: Here’s something to worry about:

‘Induce’ means intentionally aids, abets, counsels, or procures.  So you can’t even hire a lawyer if you’re doing something risky.
This is amazing.  Now we’re waaaaaay beyond contributory and vicarious theories of liability, which are court-created and pretty darn broad on their own.  See Napster 9th Circuit, Aimster 7th Circuit.  It’s not even clear what the limit to this is — “aids” could mean that even something that would have been fair use under the Sony Betamax decision is now an illegal inducement. 

Under current copyright law, decentralized P2P networks like Gnutella or Kaaza, which have significant, non-infringing uses, do not themselves infringe upon copyrights. However, they might be considered to induce uploaders to infringe copyrights by making it so easy to copy files.
In News.com, Declan McCullagh writes: Antipiracy bill targets technology

forthcoming bill in the U.S. Senate would, if passed, dramatically reshape copyright law by prohibiting file-trading networks and some consumer electronics devices on the grounds that they could be used for unlawful purposes.

Inducement already exists in patent law. See 35 U.S.C. 271(b): “whoever actively induces infringement of a patent shall be liable as an infringer.” Of course, patent law provides for much stricter protection against infringement for a shorter time period than copyright law. Copyright law offers longer protection, but with limitations such as fair use. Copyright law may also have more significant First Amendment implications.
Ernest Miller: INDUCE Act is Free Speech Killer

It also seems to me that this statute as applied to speech is a content-based restriction, which means that it is subject to what is known as “strict scrutiny.” In order to pass the strict scrutiny standard, the law must be “narrowly tailored” to meet a “compelling government interest.” I’ll grant that preventing copyright infringement is a “compelling government interest” but I’ll be damned if the law is narrowly tailored to achieve it for a number of reasons. For example, much speech that induces infringement also induces fair use. You can’t really stop one without stopping the other.

California Senate passes anti-Gmail bill

Reuters: Tightening the Reins on Gmail: “California’s state Senate approved the first-of-its-kind bill by a vote of 24-8 to restrict how Mountain View, California-based Google’s upcoming free “Gmail” service could work once it is available in wide distribution.”
SB 1822 (amended):

This bill would allow a provider of
e-mail or instant messaging services to review, examine, or evaluate
the content of a customer’s e-mail or instant messages only if the
review is for the automated and contemporaneous display of an
advertisement to the user and other specified conditions are
satisfied. The bill would provide that its provisions do not prevent
a provider of e-mail or instant messaging services from evaluating
the contents of e-mail or instant messages for specified purposes,
including the removal of malicious programs. The bill would specify
that its provisions do not imply consent to the examination of e-mail
or instant messages if consent is otherwise required

Previously: Gmail privacy kerfuffle

Surf the web, tax-free

AP: Senate Keeps Web Access Tax-Free 

The Senate voted overwhelmingly to restore a ban on taxing Internet connections for four years, stopping short of the permanent ban approved by the House.
The two chambers will try to work out their differences over an issue that pits a U.S. telecommunications industry trying to expand a range of services against state and local governments worried they could lose billions of dollars in tax revenue.

WhenU Challenges Utah Anti-WhenU Law

This year, the Utah state legislature passed Spyware Control Act (H.B. 323). This law is intended to give website holders a recourse against adware providers such as Claria and WhenU.
The bill would:

  • prohibit using a federally registered trademark to trigger an ad by someone other than the trademark owner.
  • require user consent to a license agreement which includes a notice of:
    • the collection of each specific type of information to be transmitted as a result of the software installation;
    • a clear and representative full-size example of each type of advertisement that may be delivered;
    • a truthful statement of the frequency with which each type of advertisement may be delivered;
    • a clear description of a method by which a user may distinguish the advertisement by its appearance from an advertisement generated by other software services
  • Allow the following types of persons to bring an action:
    • a website owner
    • a trademark or copyright owner
    • an authorized advertiser on an Internet website.

A number of web publishers who are not Claria or WhenU fear that this law is too broad: Leading Internet Providers Oppose Passage of Spyware Control Act

Web publishers and businesses including American Online, Amazon.com, Cnet, eBay, Google, Microsoft Corp., and Yahoo! signed a letter on March 1 to Utah Senate Majority Leader John Valentine and Representative Steven Urquhart, who sponsored the bill, warning that the bill–if signed into law–could create serious repercussions for the entire online community. According to reasons cited in the letter, the Spyware Control Act is structurally flawed because its definition of spyware is too broad. It states that several types of important and beneficial Internet communications software, and even routine network communications, fall under the bill’s definition of spyware.

On Monday, WhenU filed a lawsuit alleging that the law ” violates its constitutionally protected right to advertise, while doing little to protect computer users’ privacy.”
The Complaint (courtesy of Ben Edelman, via Trademark Blog)

Won’t Somebody Think of the Children?

Senators Hatch (R-UT) and Leahy (D-VT) introduced the Protecting Intellectual Rights Against Theft and Expropriation Act of 2004 (S.2237) which would add §506a to the Copyright Act (17 USC) to allow the Justice Department to file civil copyright infringement complaints. These civil copyright cases would only require a preponderance of the evidence to prove infringement (rather than the stricter beyond a reasonable doubt standard for a criminal copyright infringement case.)
Wired News: Congress Moves to Criminalize P2P 
Joe Gratz: RIAA’s Next Step: A $2 Million Gift From Taxpayers: “[This aproach] shifts the costs of civil copyright enforcement from copyright holders to taxpayers. The direct cost is $2 million dollars – a quick, easy $2 million wealth transfer to rent-seekers from society at large. Perhaps the larger cost is the further erosion of the public’s belief in the separation between government and big business.
Copyfight’s Donna Wentworth: Funding the War on Filesharing
Ernest Miller: PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry

Perhaps Hatch doesn’t realize this, but most pornography is copyrighted and, as Hatch notes, is frequently distributed via filesharing networks. Since Hatch wants to stop copyright infringement and also discourage the redistribution of pornography, there is only one logical conclusion. This new law is meant to encourage the DOJ to go after those infringing pornography copyrights through P2P filesharing. By suing those engaged in pornography piracy, the DOJ could accomplish two of Hatch’s goals at once: reducing infringement and pornography redistribution