Andrew Raff

Here are a few notable reactions to the DC Circuit’s Comcast v. FCC ruling last week:
Marvin Ammori, How I Lost the Big One, Bigtime, “I’ll begin with how the decision affects you: it’s really bad news for you and other Americans. I’m sorry to be the one to tell you, but I’m sure you’ve heard (from multiple news sources). The court decision is a stunning, sweeping defeat for the FCC and for its ability to protect consumers, foster competition and innovation, and preserve the Internet’s role as an engine of free speech and democratic discourse. It means, essentially, that the largest phone and cable companies can secretly block dozens of technologies used by large corporations, nonprofits, and individuals to speak and organize, and the FCC can do nothing to protect us.”
Austin Schlick (FCC General Counsel), Implications of Comcast Decision on National Broadband Plan Implementation, “Does the FCC still have a mission in the Internet area? Absolutely. The nation’s broadband networks represent the indispensable infrastructure for American competitiveness and prospects for future job creation, economic growth, and innovation. The Court did not adopt the view that the Commission lacks authority to protect the openness of the Internet.”
Susan Crawford, The New York Times, An Internet for Everybody, “But the F.C.C. needn’t change either strategy. It can regain its authority to pursue both network neutrality and widespread access to broadband by formally relabeling Internet access services as ‘telecommunications services,’ rather than ‘information services,’ as they are called now. All the commission needs to do is prove it has a good reason.”
Timothy Haw, Wall Street Journal, Why Net Neutrality Ruling Is A ‘Tragedy’ For Small Businesses, “This would be a tragedy for our nation’s future, for Internet service providers to tell you that you can’t use the big lane that goes fast, but the little lane that goes slowly.”
Art Brodsky, Public Knowledge, Comcast Sees The Downside To Winning Their Net Neutrality Case | Public Knowledge, “The hidden story of Comcast’s glorious victory is that if Comcast were smart, it wouldn’t in the first place have brought the case, which challenged the FCC’s authority over the company’s high-speed Internet service. Some in the telecommunications industry, perhaps even huge companies with three letters in its name, urged (begged?) Comcast not to take the FCC’s ruling to court, because of the possibility that Comcast could actually win and, potentially, win big —which is what happened.”
Jim Louderback, GigaOm, Why Net Neutrality Is Too Important to Leave Up to the ISPs “I think the best alternative, however, would be to reclassify ISPs to a Title II common carrier service from a Title I. This would put broadband into the same category as POTS and other telecommunications services. Self-regulation would be bad, and I’m leery about leaving the decision up to Congress in light of how long they can take to make a decision.”
Robert X. Cringley, InfoWorld, Broadband monopolies 1, Net freedom 0: “Why is Net neutrality important? Because in most areas of this country, broadband access still largely depends on regional monopolies or, in best case, duopolies. If you’re lucky, you get a choice between a Monolithic Former Baby Bell or a Big Five Cable Company, both of which want to sell you Internet, voice, video, and maybe also wireless for $100 to $200 a month.”
Mike Masnick, TechDirt, Net Neutrality Battle Quickly Turns Into Political Food Fight: “The whole thing is a bit of a mess — and, once again, distracts from the larger issues (i.e., the lack of real competition in the space). Now, there’s a reasonable argument to be made that both services do, in fact, have common carrier status. The argument is stronger with DSL, which is built on telco infrastructure that, at one point, was built and run through a gov’t-granted monopoly. But, with both, you are dealing with public rights of way, which at least give some legitimacy to the idea that they should fall under a category that involves oversight from the FCC. But, having already flipped the switch one way, going back the other way is not going to be as easy.”
Matthew Lasar, Ars Technica, Don’t blink: Hard-charging FCC turns broadband plan into action: “Federal Communications Commission watchers everywhere, gird thy loins. However frenetic you thought it was in FCC-land back during the media ownership, Comcast P2P, or Sirius XM merger wars, forget it. The Commission has just laid out the road map and schedule for implementing its National Broadband Plan, and it looks pretty relentless—crucial rulemakings lined up back to back through the rest of the year and into 2011.”
David Weinberger, Joho the Blog » Reclassifying broadband: “I was less depressed than I would have expected about yesterday’s ruling that the FCC does not have the authority to tell Comcast to let us do what we want with our Internet. In part, that’s because I was expecting to lose. In part it’s because this battle is far, far from over. There’s the possibility of an appeal (although the 3:0 decision seems pretty definite), Congressional action, or reclassifying the Internet. The third is the most interesting, although it has its own risks.”
Previously: Comcast and the Information Service/Common Carrier Classification

Yesterday, in an already widely discussed decision, the US Court of Appeals for the DC Circuit ruled that the FCC does not have the authority to regulate network management practices under its ancillary jurisdiction. Comcast Corp. v. Federal Communications Comm’n.
Because control over Internet access is such an important and personal issue, this ruling made the front page o the New York Times and Washington Post today. Time Magazine’s television critic wrote a long blog post about this ruling.
The Communications Act grants the Commission authority to regulate broadcast and telecommunications with specific enumerated powers. And more than a decision on network management practices, the crux of the Comcast ruling is more to do with how the Commission decided to approach regulating broadband back at the beginning of this century. And this decision highlights some of the tensions between letting the Internet itself develop as a forum without too much government regulation and the need to regulate internet access providers in order to ensure that individual users have open access to the Internet itself.
The FCC has the authority to regulate common carrier communications under Title II of the Communications Act. These regulations are meant to ensure that telephone carriers act as common carriers. In a very broad and crude definition, common carriers are required to transmit exactly what they are asked to pass on. Title II requires that carriers not discriminate against or give any unreasonable preference to particular users of its telecommunications services.

It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.

Title II places other restrictions on common carriers, such as the requirements to charge only set rates, to contribute to the costs of rural telephone systems, and to allow interconnection with the facilities and exchanges of all other telecommunications providers. In order to allow the then-nascent broadband internet access market to develop in a competitive fashion, the Commission decided to classify cable modems as an information service, rather than a telecommunications service, so that they wouldn’t be subject to all of the regulations on Title II services.
Information services are outside the scope of Title II regulation.

The term ‘information service’ means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.

A simple way to think about the distinction between common carriers and information services is to think back deep into the past and consider accessing a BBS using a computer and dialing in using a modem. The phone line you use to place the call is a common carrier, but the computer that hosts the BBS at the other end is an information service provider. Even though it’s accessed over the phone line, the BBS is not providing telephone communications services. All the telephone line is doing in this case is transmitting the data.
In 2002, the FCC ruled that cable modem service is properly classified as an information service rather than cable service or telecommunications service offering and therefore is not subject to common carrier regulation, but merely to regulation under the Commission’s ancillary jurisdiction to regulation communications under Title I of the Act. In re: Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities.
The Supreme Court affirmed the Commission’s ability to make that regulatory classification in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005). In a 6-3 opinion delivered by Justice Thomas, the Court overturned the Ninth Circuit and ruled that the Commission acted within the scope of its power to make such a regulatory classification and that the classification should be afforded judicial deference. (Previously: Brand X)
In 2008, the FCC issued a ruling that Comcast’s selective treatment of the BitTorrent protocol was a “discriminatory and arbitrary practice unduly [that] squelches the dynamic benefits of an open and accessible Internet and does not constitute reasonable network management.” In re: Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Application No. 08-183.
The FCC’s authority to regulate information services stems from its ancillary jurisdiction in Title I of the Communications Act; it gives the FCC authority to perform acts not contemplated in the statute that might be necessary to carry out the goals enumerated in the statute:

The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions. 47 USC §154(i)

In Comcast, the cable operator challenged the Commission’s order, on theory that the FCC can not regulate a cable modem information service under its ancillary jurisdiction of Title I. The Commission argued that these regulations are necessary in order to promote the policy goals of §230(b), “It is the policy of the United States… to promote the continued development of the Internet and other interactive computer services and other interactive media.”
The DC Circuit examines at whether the use of ancillary jurisdiction is permissible using a two-part test, “The Commission . . . may exercise ancillary jurisdiction only when two conditions are satisfied: (1) the Commission’s general jurisdictional grant under Title I [of the Communications Act] covers the regulated subject and (2) the regulations are reasonably ancillary to the Commission’s effective performance of its statutorily mandated responsibilities.”
The DC Circuit ruled that the authority in ancillary jurisdiction was not sufficient to be the sole authority for the FCC Order. “the Commission is seeking to use its ancillary authority to pursue a stand-alone policy objective, rather than to support its exercise of a specifically delegated power.” Ancillary jurisdiction can be exercised for reasons stemming from other parts of the Telecommunications Act, but does not provide justification in and of itself for agency action.
By specifically exempting cable modem service from Title II classification in 2002, is the Commission now prevented from enacting network neutrality regulations? What does this mean for network neutrality? One view is that the FCC lacks the authority to regulate broadband providers to protect the free flow of information across the internet. Or, it could be that the FCC’s decision to classify cable modem service as an information service should be reconsidered — the information service aspects of internet access can be distinguished from the common carriage aspects. Because what is network neutrality, if not a form of common carriage?
Perhaps the reason that so many people are concerned about this ruling and the issue of network neutrality in general, is because the internet is used more for communications than for accessing information. Like the dial tone for the 20th century, access to the internet is the fundamental baseline for communications in the 21st century.
Links with better analysis:
Susan Crawford, “Ancillary jurisdiction” has to be ancillary to something, “The next time the FCC wants to issue an Order or otherwise exercise power over high-speed Internet access providers, it had better be very clear about the source of its power, and it can’t rely on just its ‘necessary and proper’ clause in Title I.”
Jack Balkin, What’s Next For Network Neutrality?, “It’s possible that the FCC will simply see if it can get a reversal in the Supreme Court. That will take many more years of litigation. But the FCC might decide that the better solution is to retrace its steps, correct the mistake it made in 2002, and reassert Title II authority over broadband. Doing this would give the FCC the tools it needs to deal with the regulatory problems of the future.”
Law Librarian Blog, FCC Loses Comcast Appeal on Net Regulation “The most likely scenario is for Congress to specifically grant authority to the FCC when it considers legislation to implement the National Broadband Plan. Members of Congress have spoken out on the issue of network neutrality. Nonetheless, it’s going to take an intense lobbying effort by consumer and public interest groups to match the deep pockets of the ISPs and content providers who are against Internet regulation. It should be interesting to see how the players line up after this development.”
Public Knowledge: Public Knowledge Explains: The Comcast-Bittorrent Decision, “The real tragedy of today’s ruling is that this entire issue is a self-inflicted wound by the FCC. When it decided not to regulate broadband Internet under Title II (by placing cable broadband into Title I and moving DSL broadband from Title II to Title I), it turned its back on a specific delegation of powers from Congress. There would be no debate about ancillary authority if the FCC were to recognize that broadband Internet is a Title II ‘telecommunications’ service. The FCC has the statutory power it needs if it chooses to use it.”
Jenna Greene, National Law Journal, Uncertainty for FCC’s ‘Net Neutrality’ in Wake of Comcast Ruling, “In the wake of a stinging defeat in court, the Federal Communications Commission finds its ability to regulate the Internet in question, its signature ‘net neutrality’ initiative hanging by a thread. Now, the agency faces several unpalatable options.”
Economist Democracy in America Blog, Hey internet entrepreneurs, nuts to you “Ah, the joys of rent-seeking behaviour. The most likely result of allowing connectivity companies to charge discriminatory fees for different packets is what internet entrepreneur Alok Bhardwaj calls ‘extortionary pseudo-services”: fees to allow some of your packets to arrive ahead of others, or to allow your packets to arrive ahead of your neighbour’s. Another likely result is simple profit-seeking control over content delivery.”
Mehan Jayasuriya, Public Knowledge, The FCC Lacks the Authority to Protect Internet Users–Now What? “The roots of this problem can be traced back to 2001, when the FCC began a process that would effectively deregulate broadband Internet services, reclassifying broadband service as an ‘information service’ (Title I of the Communications Act), rather than a ‘telecommunications service’ (Title II). Though this may seem like a fine distinction it’s not: in reclassifying broadband services, the FCC lost the ability to take action against broadband ISPs that engage in ‘unjust’ or ‘unreasonable’ practices.”
Ryan Singel, Wired, Court Drives FCC Towards Nuclear Option to Regulate Broadband “A federal appeals court all but told the FCC Tuesday that it has no power to regulate the internet, putting large chunks of the much-lauded national broadband plan at risk. And the FCC has only itself to blame.”

Sam Grobart, New York Times Bts Blog, A Is for Amazon, B Is for Best Buy: “On the Web, there’s another way a single letter can enhance a company’s prestige. Go to Google’s home page or browser toolbar and type a single letter into the search box. The search engine will then drop down a list of suggestions, based on overall search activity (you have to have “show suggestions” checked for this to happen in your toolbar). There are 26 sites that have the distinction of being the first suggestion for each letter of the alphabet.”
Interestingly, except for d for dictionary (where dictionary.com is the first result), all of these searches are for specific brands, rather than generic keywords.

Secretary of State Hilary Clinton: Remarks on Internet Freedom, “On their own, new technologies do not take sides in the struggle for freedom and progress, but the United States does. We stand for a single internet where all of humanity has equal access to knowledge and ideas. And we recognize that the world’s information infrastructure will become what we and others make of it. Now, this challenge may be new, but our responsibility to help ensure the free exchange of ideas goes back to the birth of our republic. The words of the First Amendment to our Constitution are carved in 50 tons of Tennessee marble on the front of this building. And every generation of Americans has worked to protect the values etched in that stone.”
Good to see the Secretary of State looks to the internet as a tool that can reflect both democratic and totalitarian views and how the US has the imperative to promote democracy through technology.
Susan Crawford, Leadership and persuasion: Internet freedom, “Secretary Clinton’s major address today on internet freedom made the connection between humanity and technology. We’ve been waiting a long time for our political leaders to have the courage to express thoughts like this, to have a vision about the role of the internet in human history, and today the day arrived.”
David Weinberger, Hillary Clinton’s Internet policy speech: “It’s thrilling that a Secretary of State would claim ‘freedom to connect’ as a basic human right. That’s a very big stake in the ground. Likewise, it’s sort of amazing that the State Department is funding the development of tools to help users circumvent government restrictions on access. On the negative side, it’s distressing (but not surprising) that the Secretary of State should come out against anonymity so we can track down copyright infringers. Of course, in response to a question she said that we have to strike a balance so that the anonymity of dissenters is protected even as the anonymity of file sharers is betrayed. I just don’t know how you do that.”

The internet can be a tool to promote democracy and access to information can be a powerful tool. In the same respect protecting profit at the cost of freedom is a choice that most companies are happy to make. Google is taking a bold step with A new approach to China: “These attacks and the surveillance they have uncovered–combined with the attempts over the past year to further limit free speech on the web–have led us to conclude that we should review the feasibility of our business operations in China. We have decided we are no longer willing to continue censoring our results on Google.cn, and so over the next few weeks we will be discussing with the Chinese government the basis on which we could operate an unfiltered search engine within the law, if at all.”
More from James Grimmelmann, Google and China: “This is inherently a political decision, whichever way it is made. Search shapes how we see and experience the world, and every decision about search engages with questions of values and the law. I think the values Google has chosen with this new decision are good ones: commitments to truth, open discussion, and democracy. It’s acting in a way consistent with its “Don’t Be Evil” motto and I salute them for it.”

In The New York Times, Adam Raff (no relation that I’m aware of) wrote an Op-Ed arguing that the FCC should regulate “search engine neutrality,” Search, but You May Not Find

Today, search engines like Google, Yahoo and Microsoft’s new Bing have become the Internet’s gatekeepers, and the crucial role they play in directing users to Web sites means they are now as essential a component of its infrastructure as the physical network itself. The F.C.C. needs to look beyond network neutrality and include “search neutrality”: the principle that search engines should have no editorial policies other than that their results be comprehensive, impartial and based solely on relevance.

Raff’s argument is essentially that because search plays a dominant role in driving internet users to web sites and because Google is so dominant in search, it can use its market power to effectively drive smaller companies off of the Web.
Isn’t this really a question of anti-trust and/or competition rather than communication? If Google is using its market power against smaller competitors, that would be prohibited by existing Federal anti-trust law. The FTC already regulates anti-competitive business practices.
The market for internet access is fundamentally different from the market for web search. The cost of switching search providers is very close to zero. To change one’s preferred default search engine takes mere seconds. Even Google’s own web browser, Chrome, respects the computer user’s default search setting and will default to using Microsoft’s Bing as its search engine.
The cost of switching internet access providers may be more difficult because local cable franchise laws and/or physical distance from the telephone central office may prevent Americans from physically being able to switch from one broadband internet service provider to another. For users who have only one potential provider for broadband internet access, they may be denied access to entire services and content if, on a non-neutral internet, that service provider decides to deny access to certain services because the competitors to those services paid the provider for preferential service.
Is there any reason that search engines deserve special regulation as part of communications infrastructure rather than the same general antitrust and unfair competition laws and regulations that already prohibit using market power for nefarious anti-competitive goals?
At Madisonian.net, Greg Lastowka asks What is Search Neutrality? and Rob Heverly argues There is no “search engine neutrality”.
Here’s Foundem’s campaign for Search Neutrality.
Academic papers discussing search engines
Eric Goldman, Search Engine Bias and the Demise of Search Engine Utopianism, Yale Journal of Law & Technology, 2005-2006
James Taylor Lewis Grimmelmann, The Structure of Search Engine Law. Iowa Law Review, Vol. 93, No. 1, 2007
Urs Gasser, Regulating Search Engines: Taking Stock and Looking Ahead. Yale Journal of Law & Technology, Vol. 9, p. 124, 2006

or, My Name is My Name!
Blawg Review’s Editor asked me to host today’s Blawg Review because today, November 30, is St. Andrew’s Day.
And given the speed with which Blawg Review’s Editor forwarded along this list of other law bloggers named Andrew, I can only assume that at least a substantial fraction of them obviously have more sense than to agree to host Blawg Review after Thanksgiving weekend:
Andrew Flusche
Andrew Feldstein
Andrew Ewalt
Andrew Lavoott Bluestone (New York Attorney Malpractice Blog)
Andrew Barovick(New York Medical Malpractice Law Blog)
Andrew Hale & Associates (Wrongful Conviction Lawsuit Defense Blog)
Andrew S. Alitowski (Kentucky Personal Injury Lawyer Blog)
Andrew Morshirnia (Citizen Medial Law Project)
In Christianity, St. Andrew is the patron saint of Scotland, Ukraine, Romania, Greece and Russia. (If you are also unfamiliar with the concept of patron saints, Wikipedia tells me that a patron saint is “a saint who is regarded as the intercessor and advocate in heaven of a nation, place, craft, activity, class, or person.”) The Scots are most closely associated with St. Andrew as St. Andrew’s Day is Scotland’s national holiday. So, let’s stroll through some of the finest law blogs from Edinburgh and beyond:
Scottish Law Blog Links
Scotland is acquiring more self-governance. Devolution is a way of enabling Scotland (as well as Wales and Northern Ireland) to have forms of self-government within the United Kingdom. Alan Trench covers the latest news at his blog, Devolution Matters.
Did you happen to stumble onto a treasure trove under the links (or elsewhere in Scotland)? At Scots Law News, Hector MacQueen discusses the Scots law of treasure trove and how it differs from English law, There’s gold in them thar hills…
Scots Law blogger Jonathan Mitchell discusses the Rights to environmental information and explains some of the benefits to seeking information under the Scottish schemes rather than the UK schemes.
Andres Guadamuz, law lecturer at the University of Edinburgh may have my favorite blog name, TechnoLlama. This week, he takes a look at How to Use Non-Commercial Content Commercially.
The Scots Law Student (can there only be one?) takes a look at going paperless.
Future Scottish holidays could become even more entertaining. Former Scotland Solicitor General Lord McCluskey suggested the legalization of heroin and other controlled substances, on the basis that the drug problem is primarily a health, rather than criminal, problem.
Via Ann Bartow at Madisonian.net, we learn that a Scottish brewery, BrewDog of Fraserburgh, has launched Tactical Nuclear Penguin Beer, with a 32% alcohol content.
In Scotland, the Old Course at St. Andrews is one of the oldest golf courses in the world, with records of golf having been played there since 1574. In 2010, it will be the next host of The Open Championship (or better known here in the US as The British Open.) The last time St. Andrews hosted the Open Championship was in 2005 (which, incidentally, was also the last time that I hosted Blawg Review.) That year, Tiger Woods won the second of his 3 British Open Champsionships. (He won his first in 2000, also at St. Andrews.)
Speaking of Tiger, you may have heard that he was involved in some kind of automobile incident outside his house this weekend. Woods is famously protective of his privacy. At the Sports Law Blog, Rick Karcher discusses: Tiger Woods Brings to Light the Privacy Rights of Public Figures.
In 2003, the Sixth Circuit Court of Appeals found that neither trademark law nor the right of publicity impaired a painter’s the First Amendment rights to sell his own original paintings of Woods. ETW Corp. v. Jireh Pub. Inc.
Back in Blawg Review #206, J. Craig Williams celebrated Tartan Week with All Things Scottish. And remember the sage wisdom of Stuart Rankin, If it’s not Scottish, it’s crap!
And now, onto some more hyper, rather than golf, links:
Bob Loblaw & Law Blogging
Citizen Media Law Project Launches Legal Assistance Network for Online Journalists, “We are delighted to announce the public launch of the Berkman Center’s Online Media Legal Network (OMLN), a new pro bono (i.e., free!) initiative that connects lawyers and law school clinics from across the country with online journalists and digital media creators who need legal help. Lawyers participating in OMLN will provide qualifying online publishers with pro bono and reduced fee legal assistance on a broad range of legal issues, including business formation and governance, copyright licensing and fair use, employment and freelancer agreements, access to government information, pre-publication review of content, and representation in litigation.”
Kevin O’Keefe is (not surprisingly) optimistic about the potential for law blogs to broaden and deepen the reporting and coverage of law, Legal blogs take legal reporting to a new level.
Scott Greenfield reminds us that while every lawyer can blawg, not every lawyer should, Blogging Is Alive, And Aggravating, “Most new blogs are doomed to death from the outset, created for the wrong reason and certain to fail to achieve their creator’s purpose. Most offer neither insight nor viewpoint, as their creators are scared to death that taking a firm and clear position might offend a reader, a potential client. After all, the vast majority of blogs are born solely as a marketing vehicle, even if the creators follow the sound advice not to make them look too ‘markety.'” (This is one of those posts that’s hard to excerpt because it’s full of awesome.)
Practical Practice Tips
The Nutmeg Lawyer found a way to apply watching AMC’s excellent Mad Men to developing one’s law practice: Don Draper’s Guide to Being a Better Lawyer.
I’d like to see an equivalent for AMC’s other excellent show, Breaking Bad, with law lessons from Saul Goodman.
Above the Law finds a firm who might want to call Saul for better advice on how to market their practice: Adventures in Lawyer Advertising: Texas Firm’s Kiddie Porn Practice Group.
Del Quentin Wilber in the Washington Post reports: Blackwater lawyers reprimanded … for not double-spacing. Yes, it’s that Blackwater, now known as Xe.
Adams Drafting on “Shall Never”
Show up to court conferences: Simple Justice posts, Mortgage blowback.
It may be a bit lazy to link to a link roundup, but Infamy or Praise hits a number of good posts about the Florida Bar’s settlement with the Public Citizen group about bar scrutiny of sites like Avvo and LinkedIn that allow clients to comment on attorneys listed on those sites, A Round Tuit (10)
Copyright, Internet and Privacy Law
Discuss: Say Goodnight Keith Moon
Scrivener’s Error awards The 2009 Turkey Awards
Tamera H. Bennett asks, Will The Music Industry Develop A “Got Milk?” Campaign?. (I would suggest thats copyright law basics should be taught as part of a comprehensive information literacy program in elementary and high school.)
James Grimmelmann’s Laboratorium is the go-to source for news about the Google Books settlement between the Authors Guild and Google. See, e.g. The Game is Afoot. (Previously: Google Settles with Publishers.)
See more from The Author’s Guild, The New York Times, and Google.
Deven Desai weighs in on Google’s move towards making case law free and accessible, Google, The Good: Free Law!
In the Harvard JOLT Digest, Adrienne Baker discusses No Permission Needed to Copyright a Derivative Work. Exclusive Rights, 7th Circuit Opines on Originality Standard for Derivative Works. Both of these posts discuss the Seventh Circuit’s copyright ruling about derivative works in Schrock v. Learning Curve Int’l
Rebecca Tushnet, 43(b)log, on copyright and crossword puzzles: Slate on achieving substantial similarity without copying
After attempting to install filtering software, BitTorrent tracker Mininova is shutting down its public torrent tracker system in order to comply with the verdict against it in the Netherlands: Mininova limits its activities to Content Distribution service
At Eric Goldman’s Technology & Marketing Law Blog, Venkat Balasubramani takes a look at Twitter’s Updated Privacy Policy
Lowering the Bar, Facebook Pics Prove You Aren’t Disabled, Insurer Tells Depressed Woman, “A Canadian woman who has been on long-term leave from her job since being diagnosed with major depression had her benefits taken away after her insurer found pictures of her on Facebook having fun.”
Constitutional Law
Are Lawyers “Debt Relief Agencies”? On Tuesday, December 1, the Supreme Court of the US is set to examine whether lawyers are Lawyers “Debt Relief Agencies” as defined by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. At SCOTUSbog, Anna Christensen previews Milavetz, Gallop & Milavetz, P.A. v. United States and United States v. Milavetz, Gallop, & Milavetz, P.A.. The consolidated cases pose the questions of whether attorneys are “debt relief agencies” as defined by Act, and, if so, whether the challenged sections of the Act are unconstitutional.
Did Texas’s attempt to ban gay marriage actually ban all marriage? Lowering the Bar posts, Marriage Illegal in Texas, Says Candidate, “Barbara Ann Radnofsky, formerly a partner with Vinson & Elkins and now a Democratic candidate for Texas Attorney General, has pointed out the uncomfortable fact that a 2005 amendment to the state constitution, which was designed to ban gay marriage, may in fact ban ALL marriage.”
Building a mosque in Switzerland? Religion Clause reports, Swiss Voters Approve Ban On Minarets, “The final tally showed that 57.5% of the voters and a majority of the cantons backed the initiative. The government, and most political parties, churches and businesses had all opposed the ban.”
Tim Zick at PrawfsBlawg, Flipping the Bird, Pittsburgh officials have tentatively approved a $50,000 settlement in the case of a motorist who flipped off a police officer (apparently not knowing at the time the offending gesture was made that the person was an officer).”
Begging the Question notes that the KKK isn’t quite coming out in force as threatened, after The University of Mississippi sought to stop chants of “The South will rise again!” at football games, The robes probably smell like mothballs, too
Technology
Niki Black discusses cloud computing, law firms, and new ideas in technology: Change is Good
Brett Trout at BlawgIT, Luddite Patent Attorneys Are More Expensive Than You Think
Need a gift for your patent attorney? At Patent Baristas, Stephen Albainy-Jenei suggests some of the Best Gifts for Patent Attorneys 2009.
Other notable Andrews
NYAG Andrew Cuomo
Industrialist Andrew Carnegie
US President Andrew Jackson
Musician Andrew Bird
Musician Andrew W.K.
Mathematician Andrew Odlyzko
Economist Andrew Gelman
TV host Andrew Zimmern
Hurricane Andrew (1992)
The Saint Andrew’s Golf Club in Hastings-on-Hudson, NY is America’s oldest golf club.
Miscellany
Michael Atkins, Seattle Trademark Lawyer, WTO Riots Ten Years Later: The Tension Continues Between Trade and Rights: “The World Trade Organization came to Seattle ten years ago. Protests and riots ensued. Seattleites won’t soon forget the tear gas, smashed windows, police in riot gear, out-of-town ‘anarchists,’ giant ninja turtles, and chants of ‘The whole world is watching!’ Of course, the tension between international trade and human rights that existed then still exists today.”
Anne Reed will no longer be blogging about juries and jury trials. Find out why at her blog, Deliberations, An End and a Beginning. (Short summary: good news!)
Matthew Heller, On Point, Stunning Decision Finds Taser Risks Not “Knowable”: “Less than 18 months after a jury found Taser International liable for failing to warn that its stun guns could cause heart attacks, a California judge has completely disregarded that verdict in dismissing a very similar wrongful-death lawsuit.”
Scouting NY found the Fountain of the Planet of the Apes, in Queens: 45 Years Late to the Fair: “Queens once had an honest-to-God Parks Department-approved fountain named ‘Fountain of the Planet of the Apes.’ And if that’s not odd enough, an identical fountain on the opposite side of the Queens Zoo was named ‘Fountain of the Planet of the Grapes of Wrath.’ ”
It may not come from the legal blogosophere, but if you haven’t already seen the Muppets sing Queen’s “Bohemian Rhapsody,” start your week off with a smile:

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

If a tribute band uses choreography that’s so original that it can deserve copyright protection on its own, what does that say about how good the tribute band is as a tribute band? ACES – Four Tops & Motown Tribute Show (1991-2002)

“This routine seen here is currently being used without consent in The Magic of Motown show and How Sweet It Is. Freddie Lee Peterkin is taking legal action against these shows for infringement of copyright of his original dramatic works.”

And a gratuitous link to the video of Tenacious D’s masterpiece, Tribute

I missed the Future of Music Policy Summit this year, but Senator Al Franken gave a keynote address that summarizes concisely the key concerns about the need for net neutrality, framed in terms of a First Amendment free speech concern and secondly about creating entrepeneurial opportunities (rather than enabling and entrenching incumbents.) Al Franken Keynote Address to Future of Music Policy Summit 2009, “The stifling of openness on the Internet isn’t always about censorship. In the future, it could simply be a product of business at work – of ISPs turning a profit.”
C-SPAN, <a href-“http://www.c-span.org/Watch/Media/2009/10/05/HP/A/23996/The+Future+of+Music+Policy+Summit+2009.aspx">The Future of Music Policy Summit 2009 – Keynote by Sen. Al Franken (D-MN), REM Songwriter Mike Mills, and FCC Chair Julius Genachowski participate in the Future of Music Policy Summit 2009, which examines the direction of the digital music industry.

This story about the natural gas industry losing out to dirtier fossil fuels in the energy bill on NPR’s Morning Edition demonstrates the fundamental problem with Federal policymaking today, With Little Clout, Natural Gas Lobby Strikes Out: “[Former Senator Tim] Wirth told the industry leaders that on Waxman-Markey, they blew it. ‘Every industry was deeply engaged, except one: Yours,’ he said. ‘The natural gas industry, the industry with the most to gain and the most to offer, was not at the bargaining table.’ It’s an especially harsh verdict because the Waxman-Markey bill was drafted only after high-profile negotiations with proponents of coal, nuclear, oil, wind, solar and other energy sources.”
If natural gas is so important to national energy policy, why does the industry need to advocate for inclusion in that policy? If it’s so important, shouldn’t that be advocated by the Congressional staffs and civil service experts who are engaging in policy analysis to determine the best policy outcome for the public interest, rather than the policy outcomes best advocated by the various lobbies?

In a speech on Monday at the Brookings Institution, new FCC Chairman Julius Genachowski proposed that the FCC adopt a stronger position and be more actively involved in regulating an open Internet.

To date, the Federal Communications Commission has addressed these issues by announcing four Internet principles that guide our case-by-case enforcement of the communications laws. These principles can be summarized as: Network operators cannot prevent users from accessing the lawful Internet content, applications, and services of their choice, nor can they prohibit users from attaching non-harmful devices to the network.… Today, I propose that the FCC adopt the existing principles as Commission rules, along with two additional principles that reflect the evolution of the Internet and that are essential to ensuring its continued openness.…
The fifth principle is one of non-discrimination — stating that broadband providers cannot discriminate against particular Internet content or applications. This means they cannot block or degrade lawful traffic over their networks, or pick winners by favoring some content or applications over others in the connection to subscribers’ homes. Nor can they disfavor an Internet service just because it competes with a similar service offered by that broadband provider. The Internet must continue to allow users to decide what content and applications succeed.
The sixth principle is a transparency principle — stating that providers of broadband Internet access must be transparent about their network management practices.

The FCC launched OpenInternet.gov to share information.
Reactions and Reporting:
William McGeveran, Info/Law, FCC to Propose Net Neutrality Rules “This will be a major fight, probably the most significant battle we have seen within the federal government over the structure of the internet.”
Marguerite Reardon, CNet, Verizon, AT&T: Net neutrality not OK for wireless “Verizon and AT&T, which operate the nation’s largest and second-largest cell phone networks, respectively, say the rules should not apply to wireless Internet access.”
Comcast Executive Vice President David L. Cohen asks Does the Internet Need More Regulation? “The Internet in America has been a phenomenal success that has spawned technological and business innovation unmatched anywhere in the world. So it’s still fair to ask whether increased regulation of the Internet is a solution in search of a problem.”
Nate Anderson, Ars Technica, ISPs react, sort of support network neutrality—with caveats: “In one important sense, the ‘openness’ advocates have already won the first round of the debate: the way the issue is framed. As you can see from the statements below, no companies will come out against the idea of being ‘open,’ at least when it comes to wired networks.”
Ryan Singel, Wired, FCC Backs Net Neutrality — And Then Some: “FCC chairman Julius Genachowski delivered Monday on President Obama’s promise to back ‘net neutrality.’ But he went much further than merely seeking to expand rules that prohibit ISPs from filtering or blocking net traffic — he proposed that they cover all broadband connections, including data connections for smartphones.”
Saul Hansell, The New York Times, F.C.C. Chairman Seeks to Protect Free Flow of Internet Data: “Perhaps most significantly, Mr. Genachowski will propose that the net neutrality principles be formally adopted as commission rules, a lengthy procedure that involves several rounds of public comment. His predecessor, Kevin Martin, avoided making formal rules, arguing that the industry changes too quickly. He preferred to respond to complaints when they were filed.”
David Weinberger, NPR, Net Neutrality And Beyond: “But [regulation is] only necessary because the way we deliver Internet in this country waves at least three major Temptations to Discriminate in the faces of the access providers. 1. A provider may want to gain advantage over a competitor’s services — like Apple not allowing Google’s phone service on the iPhone. 2. It may honestly believe that its users want it to give the delivery of (for example) video priority over the delivery of e-mails or search results. 3. Or, it may view discrimination as triage necessary to handle high volumes of traffic.”
And finally, a new blog focusing on these rulemaking proceedings from law professors Jim Speta (Northwestern), Tim Wu (Columbia) Christopher Yoo (Penn) is at Net Neutrality Rules.

According to the program’s web site, Music Rules is “a free educational program designed to encourage respect for intellectual property and responsible use of the Internet among students in grades 3-8.”
At Ars Technica, Nate Anderson takes a look at the curriculum, which happens to be sponsored by the RIAA, Back to school with RIAA-funded copyright curriculum: “If this sounds more like ‘propaganda’ than ‘education,’ that’s probably because Big Content funds such educational initiatives to decrease what it variously refers to in these curricula as ‘songlifting,’ ‘bootlegging,’ and ‘piracy.”
I tend to think that copyright basics are part of the discussion about information literacy, plagarism and general internet skills that should be taught as part of teaching in the digital age, as copyright is not just recordings, but also text, images and movies.

As a 14 year old, Coleman Hickey made a stop-motion music video of Spinal Tap’s “Tonight I’m Going to Rock You, Tonight” using Legos.
The New York Times reports that Spinal Tap sought to include the video on a new concert DVD, but that Lego denied permission. Lego Rejects a Bit Part in a Spinal Tap DVD

“As final editing was being done on a concert DVD of the tour, which included footage from the video projected on stage, Lego declined to grant permission to use its figures, which are protected by copyright.
“‘We love that our fans are so passionate and so creative with our products,’ said Julie Stern, a spokeswoman for Lego Systems, the United States division of the Lego Group, a Danish company founded in the 1930s. ‘But it had some inappropriate language, and the tone wasn’t appropriate for our target audience of kids 6 to 12.'”

The Times quotes Tap’s attorney, Kia Kamran, saying that the band would have likely prevailed in a copyright infringement suit, because Hickey’s video “does not show the brand’s logo and is satirical,” but the band “did not deem the fight worth the expense.”
Spinal Tap, Lego and copyright infringement together in one story, what could be better?
Variety reports that Warner Brothers and Lego are in talks to move ahead with a Lego film, Warner builds pic with Lego, ”
WB is toying with plans to develop a movie around Lego and its popular building blocks. Scribes Dan and Kevin Hageman are penning the script for the family comedy that will mix live action and animation. Warners is keeping the plot tightly under wraps, but it’s described as an action adventure set in a Lego world.”

In the New York Times Magazine this past week, Peter Singer writes about health care rationing and determining the value of health care. Why We Must Ration Health Care. Towards the end, Singer writes,

“Will Americans allow their government, either directly or through an independent agency like NICE, to decide which treatments are sufficiently cost-effective to be provided at public expense and which are not? They might, under two conditions: first, that the option of private health insurance remains available, and second, that they are able to see, in their own pocket, the full cost of not rationing health care.”

Under a state-run single payer national health program, as in the UK and Canada, the state is tasked with making this cost-value calculation. A national health service may not pay for a procedure where the life value is thought to be less than its cost.
But in the American system of private health insurance, don’t insurers already place a value on life? And they are asking that question as “is this good for shareholders,” rather than “does the public interest in general welfare support the cost?” Aside from the small minority of Americans who can afford to pay for their health care at retail cost, most Americans rely on the judgment of their health insurance carrier to determine whether a procedure is cost-effective or not.
In theory, a free market allows customers to pick and choose between insurance plans and coverage. But in the absence of stricter regulation, the public is fairly limited in which plans they can choose. In addition, individuals typically rely on employer-provided health insurance, which makes switching carriers to a more responsive carrier or comprehensive plan difficult.
A state-run single payer plan is accountable to the people. While it might be a bureaucratic mess, how could dealing with that bureaucracy be any worse than dealing with a private sector health insurance company? With a public plan, these cost-benefit decisions are ultimately under the control of Congress, and each elected representative or Senator is accountable to his or her constituents.
Private health insurances companies are primarily held accountable by their shareholders, for whom the primary reason for owning stock is profit (especially for the large institutional investors who hold enough stock to have an impact on electing the board.) State regulators do not have the same direct chain of oversight that Congress would have over a national public health insurance plan. So wouldn’t a Federal health plan be more accountable to the people it covers than the private health insurance industry?
(In general, health insurance companies are serving their stockholders by insuring only the healthiest people to subsidize as little use of the health system as possible. Perhaps public health is a public good, and a goal of its own right that is never going to be an efficient market when incentivized by profit.

The NYT City Room blog reports that J.D. Salinger won a preliminary injunction in his lawsuit against the writer of , Judge Rules for Salinger in Copyright Suit: “In a 37-page ruling filed on Wednesday, Judge Batts issued a preliminary injunction — indefinitely barring the publication, advertising or distribution of the book in this country — after considering the merits of the case.”
Without reading 60 Years Later: Coming Through the Rye or the ruling, it’s difficult to see what features made the book an infringing derivative work rather than transformative fair use parody.
Here is the order granting the preliminary injunction, Salinger v. Colting (09-Civ-5095, July 1, 2009)

Via Top Gear’s blog, I found this link to a fan-made Top Gear style search for the beat driving road in California:

The Californians were disappointed that Top Gear dismissed the entirety of North America while searching for the best driving road in the world. So, they went to look for the best driving road in California and ended up creating an hour-long film chronicling their journey, in the style of Top Gear.
And they get the Top Gear style dead on.
Three white male presenters embark on a road trip in different cars, each of which represents a different interpretation of a common theme. In this fan film, the theme is sporty cars purchased for less than $5,000. A driver in a racing helmet sets lap times and a marker to race against (ala The Stig.) The three presenters compete in various challenges and comment on their respective cars and how a particular drive represents a broader theme about motoring, masculinity, nationality, or some metaphor for life. During the road trip, the three presenters are filmed from dashboard mounted cameras. Often, a presenter’s voiceover narration melds seamlessly into thoughts spoken while driving during the road trip. Scenes open with a camera zooming out from a car or panning across a landscape with the frames heavily vignetted vignetting. Liberal use of shots of the 3 presenters driving alongside on the highway and the way in which music is used in the soundtrack all follow the Top Gear style.
Does that make it a copyright infringement?
If enough of the elements that make up Top Gear are borrowed, is the style used in a manner consistent with fair use? This is a non-commercial, non-competitive work that responds to a particular segment filmed on Top Gear. The Search for the Greatest Driving Road in California adopts the style to respond to and parody Top Gear. The creators sought to call out Top Gear for their snub of California’s roads– in other words, to criticize Top Gear, by showing that Top Gear could have found a road in California worthy of comparison with those in the Alps.
Were this a pilot for a series commissioned by a network, would this be an infringing work? (A pilot for an American version of Top Gear, starring Adam Corolla, was made for and ultimately passed on by NBC last year.)

Dvice tests out the range of expression in the text-to-speech systems in the Kindle 2 and iPod Shuffle by having the two gadgets re-enact the most memorable scene from Star Trek II: The Wrath of Khan:

Good audiobook readings aren’t in any danger of being replaced by computers, yet.
Previously:
More Kindling (Mar. 9)
Fitter, Happier, More Productive (Feb. 27)
Take a look, it’s in a book (Feb. 11)