YouTube finds shelter in the DMCA §512(c) Safe Harbor

In granting summary judgment for YouTube in Viacom v. YouTube, Judge Louis Stanton found that YouTube complied with the notice and takedown requirements set out in the DMCA §512(c) Safe Harbor provision. By promptly taking down infringing works upon notice by the copyright owners, YouTube acted as service provider is required to in order to qualify for §512(c) safe harbor protection.
A general knowledge that users may be using the site to upload copyrighted material does not itself lead to liability under the safe harbor. “General knowledge that infringement is ‘ubiquitous’ does not impose a duty on the service provider to monitor or search its service for infringements.” After all, how is a host supposed to affirmatively distinguish 3rd party works uploaded with consent from ones uploaded as infringements or others uploaded as fair use without notice from the copyright owner?
The ruling distinguishes YouTube from P2P services like Grokster and Limewire: YouTube was found to be prompt at complying with DMCA notices by promptly taking down infringing works.
Kent Walker, Vice President and General Counsel, Google, YouTube Blog: YouTube wins case against Viacom: “This is an important victory not just for us, but also for the billions of people around the world who use the web to communicate and share experiences with each other. We’re excited about this decision and look forward to renewing our focus on supporting the incredible variety of ideas and expression that billions of people post and watch on YouTube every day around the world.”
Eric Goldman, Technology & Marketing Law Blog: YouTube Gets Decisive Win in Viacom/FAPL Case: “Now, the case is also noteworthy because it hands YouTube a clean and decisive win on the DMCA 512(c) safe harbor. The ruling basically says that the current industry standard practices of notice-and-takedown for user-caused copyright infringement satisfies the safe harbor. Although this seems like an uncontroversial result when stated like that, the reality is that copyright owners have repeatedly angled to get a better deal than Congress gave them in 512. This case will squelch many of those copyright owner requests to force service providers to go beyond current industry-standard practices. Of course, we have to see how the opinion fares on appeal.”
Susan Crawford, The Congressional deal holds: “News today that Judge Stanton (SDNY) has granted YouTube’s motion for summary judgment in Viacom v. YouTube should not be all that surprising.  In the DMCA, the burden of identifying infringing files was clearly placed on the copyright owner in exchange for a commitment by platform providers to take materials down once they received notice.  That was the deal.  If those platform providers wanted to stay like little boats safely inside the harbor of protection from liability, they had to take files down.  But they didn’t have to affirmatively hunt for infringing items.”
Randy Picker,, Viacom v. YouTube: When Is It Storage? When Is It a Public Performance?: “The issue in the case focuses on the scope of the Digital Millennium Copyright Act’s safe harbor for online service providers set forth in section 512 of the copyright statute. Section 512 is pretty chunky but most of the court’s analysis focuses on section 512(c). That subsection insulates service providers from liability ‘for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider’ if the service provider can meet a three-part standard set forth in that subsection.”
Evan Brown, Internet Cases, YouTube victorious in copyright case brought by Viacom: “Simply stated, the DMCA protects online service providers from liability for copyright infringement arising from content uploaded by end users if a number of conditions are met. Among those conditions are that the service provider ‘not have actual knowledge that the material or an activity using the material on the system or network is infringing,’ or in the absence of such actual knowledge, ‘is not aware of facts or circumstances from which infringing activity is apparent.’”
David Kravets, Wired Google Wins Viacom Copyright Lawsuit, “‘Today’s decision isn’t just about YouTube,’ said Center for Democracy & Technology lawyer David Sohn. ‘Without this decision, user generated content would dry up and the internet would cease to be a participatory medium.'”
James Poniewozik, Time Tuned In, YouTube vs. Viacom: Everybody Wins?: “TV networks discovered that the best response to people posting video online was not lawsuits, but providing what their customers obviously wanted, and providing it better. They may not have solved the problem of monetizing online video, though they’re getting closer, but what they’re doing now beats playing whack-a-mole with uploaders.”
Farhad Majoo, Slate, The court was right to side with YouTube over Viacom: “Stanton’s ruling resolves a long-standing argument between Web companies and entertainment companies on the question of how to police the Web. The debate boils down to this: Web companies want most content that people post online to be presumed innocent; if a copyright owner comes along and says that a certain video is illegal, then a Web site must take it down, but otherwise it stays up. Entertainment companies have been pushing courts to impose the opposite standard: Much of what people post online ought to be considered infringing, they argue, and Web companies should take steps to prove that the content is legitimate before they let it stay online.”
Miguel Helft, The New York Times, Judge Sides With Google in Viacom Suit Over Videos: “The ruling in the closely watched case could have major implications for the scores of Internet sites, like YouTube and Facebook, that are largely built with content uploaded by their users.”
The Daily Show’s Demetri Martin reports on the filing in 2007.
6/27/10: Ben Sheffner, Copyrights and Campaigns, Viacom v. YouTube: A disappointing decision, but how important? “Put aside, for a moment, whatever you may think of Judge Stanton’s ultimate holding absolving YouTube of copyright infringement. Purely as a matter of judicial crafting and analysis, I found the court’s order to be extremely cursory. While I certainly don’t equate quality with quantity, this opinion was just too damn short to do justice to the complex, heavily-litigated issues in the case.”

Blawg Review #269

Blawg Review’s editor invited me to host today’s Blawg Review #269 because today, June 21 is not only the summer solstice, but also World Music Day and here in New York City, Make Music New York, where New York will host hundreds of live music performances, from street performers to major concerts.
So break out your vuvuzela and make your own kind of music and let’s get down to reviewing some blawgs:
Music related links:
Did you know that vuvuzela isn’t merely the most annoying sound on Earth, but also a trademark? Vuvuzela, the trademark
And if you haven’t had enough vuvuzela watching the World Cup, you can read this blog post with vuvuzela accompaniment.
IP Tango looks at the central, non-vuvuzela related musical issue with the FIFA World Cup: Waka waka chorus – who is the author?
The official theme of the 2010 South African World Cup is under debate. The singer and songwriter, Wilfrido Vargas, accused Shakira of plagiarism for the use of the chorus of his song titled “ el negro no puede’ in the ‘wake waka’ song – the official theme of the 2010 World Cup.”
Ben Sheffner, Copyrights & Campaigns: It’s official: Don Henley wins summary judgment over Chuck DeVore on copyright claims: “It’s been a very bad month for Chuck DeVore. On June 8, the Republican Assemblyman from Orange County finished third in the GOP primary for the right to take on Sen. Barbara Boxer (D). And then, just a few days later, federal Judge James Selna issued his formal ruling on Henley’s copyright and Lanham Act claims regarding DeVore’s videos that used Henley’s songs to mock Boxer and President Obama, soundly rejecting DeVore’s fair use defense.”
Copyright Litigation Blog: Synchronizing Art to a Sound Recording: Do Financial Incentives Demotivate Creativity and Problem Solving?, “Not only is Dan Pink’s video by RSA Animate thought-provoking and relevant to whether or not money stimulates creative activity. It is also relevant to the core purpose of the Copyright Act and arguments raised in defense of draconian copyright: whether or if financial incentives stimulate creativity. Studies by the Federal Reserve and MIT raise the question of whether financial incentives actually decrease creativity.”
At Techdirt, Mike Masnick asks, Are Bad Copyright Laws Killing Jazz And Harming Jazz Musicians? “That’s a clear, concrete (and, as a jazz fan, depressing) example of an area in which copyright is clearly doing the exact opposite of its intended purpose. I’m really curious to hear from defenders of the copyright status quo (or who believe in even stronger copyright protections) to see how they defend this situation.”
North of the border, Michael Geist looks at how American-style astroturfing is coming to the debate of copyright legislation in Canada, The Copyright Lobby’s Astroturf Campaign in Support of C-32 “The copyright lobby, almost certainly led by the Canadian Recording Industry Association, has launched a major astroturf campaign in which it hopes to enlist company employees to register their support for Bill C-32 and to criticize articles or comments that take issue with elements of the proposed legislation. The effort, which even includes paid placement of headlines on, is still shrouded in some secrecy.” Later: Copyright Lobby Astroturf Site Adds Mandatory, Uneditable Letter to MPs
At Law is Cool, Pulat Yunusov looks at the Stakes of Copyright Reform in Canada, “Not many government bills cause so much debate as C-32—the legislation to amend Canada’s Copyright Act—introduced on June 2, 2010. One of C-32’s most contentious innovations is a complete ban on bypassing digital locks on electronic content. James Moore, a federal Minister, said that C-32 offered “a common-sense balance between the interests of consumers and the rights of the creative community.” But his opponents believe Moore’s “common sense” will empower copyright holders and take away traditional rights of consumers.”
Music Row Law’s Barry Neil Shrum looks at a P2P decision from here in New York: The Limewire Ruling: New King of the Hill for Illegal Downloading Decisions “The U. S. District Court for the Southern District of New York ruled against LimeWire and its parent company, Lime Group, finding them liable for inducement of copyright infringement based on the use of their service by subscribers.”
Public Knowledge is proposing a Copyright Reform Act and discussing their proposals on: Fair Use and Circumvention, with three more parts coming soon.
Ad you know, Justin Bieber is the biggest name in pop music today. Justin Bieber, Esq. Has Name To Make ‘U Smile’ (I assume that’s a reference the more pop-centric blawg readers will get.) “The recent graduate of Widener Law School was just embarking on a marketing campaign to drum up work when Justin Bieber, the Canadian teen heartthrob, became a singing sensation.” Bieber also talked with 92.3 FM.
Is Supreme Court nominee Elena Kagan too pro-Hollywood or too anti-copyright? Chris Castle: Why Artists Should Worry About Elena Kagan’s Supreme Court Appointment. Ben Sheffner: Kagan confirms: I represented the RIAA.
Play Me, I’m Yours: New York City 2010 “Touring internationally since 2008, “Play Me, I’m Yours” is an artwork by artist Luke Jerram. From 21st June – 5th July, 60 upright pianos will be distributed across New York City by Sing for Hope. Located in public parks, streets and plazas the pianos will be available for any member of the public to play and engage with.”
Since today was Father’s Day, I spent more of it playing golf with my father than reviewing the web, but fortunately Blawg Review contributors sent me a link to (the National Resposible Fatherhood Clearinghouse) with President Obama’s Father’s Day message. The Library of Congress shares some songs for Father’s Day
So here are the rest of today’s blawg review, as free jazz improv:
Did Perez Hilton violate federal child porn laws? “Child pornography and child exploitation have always raised strong public emotions. Regardless of the necessity for new laws, this
political football is carried by the Left and the Right alike, as nobody can stand up against stronger child exploitation laws and emerge politically unscathed.”
Evan Brown, Internet Cases. Illinois court sets standard for unmasking anonymous commenters “The rules of civil procedure in Illinois permit an aggrieved party to file a petition with the court asking for an order requiring unknown potential defendants to be identified. This is called a Rule 224 petition.”
Felix Salmon, Interchange and free checking “Why do most people hate their bank? Because their relationship is based on the lie of “free checking”, and a relationship based on a lie is always going to be a dysfunctional relationship. Checking is never free, but in recent years banks have been able to conjure the illusion of free through a system of regressive cross-subsidies, where the poor pay massive overdraft fees and thereby allow the rich to pay nothing.”
IP Watchdog No $5.4 Trillion Bounty for False Patent Marking Bounty Hunter “Bounty hunters make their living by capturing fugitives from justice for a monetary reward (bounty). A more recent, modern day version of the bounty hunter is one who pursues patentees for false patent marking under 35 U.S.C. § 292. The recent Federal Circuit case of Forest Group, Inc. v. Bon Tool Co. has made such false patent marking bounty hunting lucrative by saying that each falsely marked item is an “offense” under 35 U.S.C. § 292, and thus subject to a penalty of “up to $500,” with the bounty hunter getting half of the awarded penalty and the federal government the other half. As a result, a rash of such cases (upwards of at least 100 at the moment) have been filed by such modern day bounty hunters as qui tam actions against various patentees alleged to be falsely marking their products.”
Frank Pasquale, at Concurring Opinions, Just What the Oil Industry Needs: More Trade Secrecy, “I have tried to give the Obama Administration the benefit of the doubt during the Gulf/BP oil disaster. There was a “grand ole party” at Interior for at least eight years. Many Republicans in Congress would have tried to block nominees for Interior who were committed to a major overhaul of the department’s environmental priorities. But the more I read about the controversy, the harder it gets to excuse current players for their actions. Consider just one issue: the use of dispersants in response to the spill.”
The public and private sectors are going Hollywood to find solutions to the oil spill in the Gulf of Mexico. Last week, Congress heard testimony about Kevin Costner’s Ocean Therapy Solutions.
Illinois court sets standard for unmasking anonymous commenters
June 16 was Bloomsday (the day of James Joyce’s masterwork Ulysses) Happy Bloomsday. On December 6, 1933, Judge John Woolsey ruled that James Joyce’s Ulysses could be imported into the United States, since it was not, as the United States government maintained, obscene. The Second Circuit affirmed. United States v. One Book Entitled Ulysses by James Joyce, 72 F.2d 705, 706 (2d Cir. 1934).
A Fool in the Forest, Bialystock and Bloomsday (Nighttown is the Right Town) Bloomsday is again upon us, honoring that real-yet-fictive day, June 16, 1904, on which Mister Leopold Bloom and Mister Stephen Dedalus made their joint and several legendary peregrinations round and about Dublin, its vicinity and its vicissitudes, all as memorialized by Mister James Joyce in his non-iPad-compliant misterwork, Ulysses.
Simon Fodden, Slaw, Rats, I missed Bloomsday, “an event I like to note here on Slaw. It happened last Wednesday, which was June 16, the same date on which, in 1904, Leopold Bloom wandered through Dublin as Joyce’s Ulysses.”
Sexy banker Debrahlee Lorenzana may be a prototypical Rogue Client It happens to every lawyer at some point: You agree to represent a client and realize later it was a big mistake. The client goes rogue on you. You simply didn’t get the full story during intake.
Kashmir Hill, Confessions Of An Online Stalker “Without ever talking to Noah Brier or anyone who knows him, I could tell you the following: Noah’s family moved into a $353,000 home in the wooded New York suburb of Norwalk, Connecticut, when he was three. The house is now worth over a half million dollars. He was a checkers champion in third grade and fourth grade at Columbus Elementary School (and a runner-up in second grade); it took eleven minutes for his mother to drive him to elementary school.”
Matt McCusker, Deliberations, No Basis For Biases: How Demographics Fool Even The Best Lawyers Let’s face it, we all stereotype. We all make assumptions about others based on visual information alone. These could be conjectures about grey hair, obesity, a tight skirt, or a body piercing; but people continually make visual judgments of others founded only on personal biases and prior experiences.
A Public Defender, Life without possibility of redemption “I sat in a prison cell yesterday. And not your regular bullpen where they cram in 4 people who’re waiting to go to court. The real deal. Where our clients sleep at night (and often during the day). That of the 60 square foot variety.”
David Berkowitz shares the advice he’s learned from speaking in public and giving presentations: Over 100 Lessons from over 100 Events
Mashup of the day: Lord of the Vuvuzela
I’m off to watch the finale to David Simon and Eric Overmeyer’s musically excellent show Treme on HBO, and then read Alan Sepinwall’s review and interview with David Simon
Blawg Review has information about next week’s host, and
instructions how to get your blawg posts reviewed in upcoming issues.

Suit of Anarchy

Hells Angel meets with network, pitches television show about motorcycle gang. Network passes. Years later, network picks up a show about a motorcycle gang. Lawsuit ensues.
Matthew Belloni, THR, Esq, Ex-Hells Angel Claims FX Stole ‘Sons Of Anarchy’
Chuck Zito, who describes himself as the former leader of the New York City Hells Angel chapter and a “radio, television and film personality” (we’re not going to argue with him), filed a breach of implied contract lawsuit today claiming that the hit FX drama “Sons of Anarchy” was based on his ideas.”
The complaint: Zito v. FX Networks
What makes this story interesting is Sons of Anarchy creator and executive producer Kurt Sutter’s comments about creativity, pitches and the idea/expression dichotomy: DOUCHEBAGGERY IS THE GREATEST FORM OF FLATTERY… AGAIN “HAVING THE FUCKING IDEA IS NOT THE SHOW. THERE HAVE BEEN DOZENS OF OUTLAW MOTORCYCLE TV DRAMAS PITCHED IN THE LAST TEN YEARS. NONE OF THEM HAS MADE IT TO SERIES, EXCEPT SOA. BECAUSE THEY SUCKED. The same way there were dozens of mob family pitches before the Sopranos and crime scene pitches before CSI.”

Two quick internet policy links

Susan Crawford presented Rethinking Broadband at Personal democracy Forum ’10, which is a brief overview and introduction to the current state of communications policy, the major policy questions and the interests of the various players. A very worthwhile and quick overview:
Aparna Sridhar, Free Press, The Truth About the Third Way: Separating Fact from Fiction in the FCC Reclassification Debate: “While we welcome a lively debate about the best way for the FCC to move forward with implementing the National Broadband Plan, that debate should be informed by the history of communications law and policy in this country and accurate facts about both the FCC’s proposal and the technological and market realities of today’s broadband world. It should not be based on deliberate misdirection and obfuscation. We offer this issue brief to shed light on some of the more obvious misconceptions circulating about the FCC’s proposal.”


I happened to see this item on Above the Law today: It’s Time For Another Round of Tuition Hikes: “The [Brooklyn Law School] Finance Committee has approved the following tuition schedule for the 2010-2011 academic year: Full-Time: 2 & 3F: $46,284”
Forty-six thousand dollars per year? Back when I was a rising 2L, I blogged about the 2003-2004 tuition for Brooklyn Law and its competitors in the NY metro area. Brooklyn was charging us $30,200 per year in tuition and $130 in fees. That’s a 53% increase in the cost of tuition over the last 7 years.
According to the Bureau of Labor Statistics $30,200 in 2003 has the same buying power as $35,781.91 in 2010 — that’s a pretty significant 18% inflation. Yet, Brooklyn Law increased tuition by nearly 3 times the rate of inflation. Are the economic opportunites for a newly-minted JD any better than they were five years ago?

The FCC’s Third Way

In the wake of the Comcast decision, the FCC today announced its “Third Way” framework towards regulating broadband.
Statement by Chairman Genachowski, The Third Way: A Narrowly Tailored Broadband Framework:

“The consensus view reflects the nature of the Internet itself as well as the market for access to our broadband networks. One of the Internet’s greatest strengths—its unprecedented power to foster technological, economic, and social innovation—stems in significant part from the absence of any central controlling authority, either public or private. The FCC’s role, therefore should not involve regulating the Internet itself.
“Consumers do need basic protection against anticompetitive or otherwise unreasonable conduct by companies providing the broadband access service (e.g., DSL, cable modem, or fiber) to which consumers subscribe for access to the Internet. It is widely accepted that the FCC needs backstop authority to prevent these companies from restricting lawful innovation or speech, or engaging in unfair practices, as well as the ability to develop policies aimed at connecting all Americans to broadband, including in rural areas.”

In more detail, FCC General Counsel Austin Schlick discusses A Third-Way Legal Framework For Addressing The Comcast Dilemma

Specifically, the Commission could implement the consensus policy approach—and maintain substantively the same legal framework as under Title I—by forbearing from applying the vast majority of Title II’s 48 provisions to broadband access services, making the classification change effective upon the completion of forbearance, and enforcing a small handful of remaining statutory requirements. As few as six provisions could do the job:

  • Sections 201, 202, and 208. These fundamental provisions collectively forbid unreasonable denials of service and other unjust or unreasonable practices, and allow the Commission to enforce the prohibition.
  • Section 254. Section 254 requires the Commission to pursue policies that promote universal service goals including “[a]ccess to advanced telecommunications and information services . . . in all regions of the Nation.
  • Section 222. Title II requires providers of telecommunications services to protect the confidential information they receive in the course of providing service. These protections are another part of the consensus policy framework for broadband access.
  • Section 255. Telecommunications service providers and providers of telecommunications equipment or customer premises equipment must make their services and equipment accessible to individuals with disabilities, unless not reasonably achievable.

Instead of reclassifying all ISP internet access activities as telecommunications services, the Commission seeks to narrowly target only the transmission of data as a telecommunications service. All of the information processing facilities that ISPs may offer (like e-mail or web hosting services, for example) would remain classified as information services. But the commission would be able to regulate if a service provider was using its network to unfairly discriminate against competitors to its own information services.

Comcast v. FCC linkdump

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

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.”

What does this mean for domain names?

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 is the first result), all of these searches are for specific brands, rather than generic keywords.