Convicted Murderer Demands that Wikipedia Remove His Name from Victim’s Article

On November 11, Wired reported that a convicted murderer in Germany has issued a cease-and-desist letter demanding that Wikipedia remove his name from his victim’s Wikipedia article. Wolfgang Werle murdered Bavarian actor Walter Sadlmayr in 1990, and was released on parole in 2007. The letter demands legal fees and compensation for “emotional suffering” caused by the publication of Werle’s name in connection with the murder since his release. German media have already stopped using Werle’s name. Since Wikipedia is an American organization, the Electronic Frontier Foundation describes the issue as “an apparent conflict between the U.S. First Amendment — which protects truthful speech — and German law — which seeks to protect the name and likenesses of private persons from unwanted publicity.”

Senator Criticizes Verizon’s Increased Cancellation Fees as “Anti-Competitive”

On November 10, Ars Technica reported that United States Senator Amy Klobuchar wrote a letter to Verizon, criticizing the company’s announced increase in early cancellation fees for cell phone contracts. Verizon recently announced that, beginning November 15, the fee for cancelling a subsidized smartphone contract would double from a maximum of $175 to $350. Senator Klobuchar, who is a proponent of the Cell Phone Consumer Empowerment Act, called the increase “anti-consumer and anti-competitive.” Senator Klobuchar also wrote a letter to the FCC, asking for an investigation into the competitive and economic impact of the decision on consumers. Verizon noted that consumers can avoid the early termination fees by purchasing smartphones without Verizon subsidies.

United Kingdom Proposes Mandatory Surveillance of Social Networks, Chat Rooms, and Video Games

On November 9, the BBC reported the United Kingdom government has proposed that communication service providers retain records from a variety of new sources including social networks, chat rooms and online games. The move is designed to monitor the parties to and date of each online communication, but not the “actual contents of what was said.” Specific legislation has not yet been introduced, but the proposal includes compensation for the communications providers that must implement the technically challenging requirements. The government has insisted that most concerns about the proposal have only to do with the “detail of what would be done with the information.”

Court Issues TRO Against Sales of Beatles Music “Simulation”

Ars Technica reports that on November 5, a Central District of California judge issued a temporary restraining order (TRO) against BlueBeat.com, a website offering 25-cent downloads and free streaming of thousands of copyrighted songs, most notably including the entire Beatles catalog. The order is part of a suit filed on November 3 by Capitol, EMI, Priority, and Virgin Records, claiming copyright infringement and various state law violations. In its ill-received opposition to the TRO, BlueBeat asserted in part that the sound recordings it sells were not copied from the originals, but instead were “independently developed” through a “psycho-acoustic simulation” process.

New York Files Suit Against Intel

New York Attorney General Andrew Cuomo filed an antitrust lawsuit against Intel on November 4, The New York Times and The Washington Post report. The complaint focuses on Intel’s relationships with Dell, Hewlett-Packard, and IBM, asserting that the company has used what amounts to coercion and bribery to ensure the use of its chips over those of its main competitor, Advanced Micro Devices. This is the second antitrust action taken against Intel in the U.S — the first, an FTC administrative complaint, was filed in 1998 and later settled. Since 2005, however, Intel has battled and lost antitrust disputes in the EU, Japan, and South Korea.

Anti-Net Neutrality Bill Introduced in House

On October 30, Rep. Marsha Blackburn (R-TN) introduced a House bill that would ban the FCC from issuing “any regulations regarding the Internet,” PCMag.com reports. The bill came eight days after the FCC issued its proposed net neutrality rulemaking, and a week after Sen. John McCain introduced a similar bill in the Senate. Blackburn framed the bill as an effort to preserve the Internet as “the last truly open public marketplace”; supporters of FCC regulation counter that the proposed nondiscrimination rule is necessary to preserve that openness.

By Ian B. Brooks – Edited by Alissa Del Riego
United States v. Kilbride, No. 07-10528 (9th Cir. Oct. 28, 2009)
Opinion

The Ninth Circuit has affirmed the District Court for the District of Arizona, which had convicted and sentenced defendants Jeffery Kilbride and James Schaffer of transporting obscene materials for sale.

The Ninth Circuit held that a national community standard “must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email.” United States v. Kilbride, No. 07-10528 at 14492 (9th Cir. Oct. 28, 2009).  Defendant Internet spammers Kilbride and Schaffer had appealed their convictions for interstate transportation for sale of obscene material in violation of 18 U.S.C. §§ 1462 and 1465. Judge Fletcher of the 9th Circuit examined the opinions of the fragmented Justices in the Supreme Court’s opinion in Ashcroft v. ACLU for guidance in reaching his conclusion that a national community standard would not pose the constitutional concerns that a local community standard would. Ashcroft v. ACLU, 535 U.S. 564 (2002)

Eric Goldman provides an overview of the case. Orin Kerr, of The Volokh Conspiracy, criticizes the Ninth Circuit’s reasoning in the case. Kerr argues that the Ninth Circuit should have followed the precedent set in Miller v. California, 413 U.S. 15 (1973), wherein local “contemporary community standards” were applied.

Although the Ninth Circuit agreed with the defendants’ assertion that the district court erred in its jury instruction on the obscenity community standard, the court found that it was not a plain error and did not require reversal. The court reached its holding based on  Ashcroft, which found the Child Online Protection Act (COPA) unconstitutional because it was based partly on community standards to identify material that was harmful to children.

Defendants Kilbride and Schaffer operated a spamming business through Ganymede Marketing, a Mauritian company with servers operating in the Netherlands. Two images from the defendants’ sexually explicit emails lead to the obscenity charges. Kilbride and Schaffer were sentenced to 78 and 63 months respectively. On appeal, defendants challenged the District Court’s application of a contemporary community standard to email communications under Hamling v. United States, 418 U.S. 87 (1974), because it would subject the defendants to the least tolerant community standard in the country. The government challenged defendants’ argument by citing a prior case in the district, United States v. Dhingra, 371 F.3d 557 (9th Cir. 2004), in which the Ninth Circuit did not foreclose a local community standard where a crime occurred over the Internet. The Ninth Circuit distinguished Dhingra noting that it does not apply to a federal law that regulates speech.

Rather than applying Hamling, the Ninth Circuit followed Ashcroft. The Ashcroft case addressed the constitutionality of the COPA, which regulated material harmful to minors. The opinion of the Court in Ashcroft did not find it significant that Internet communications were not focused to a particular area and rejected the national community standard approach. The Ninth Circuit reasoned that the view of the Court was contrary to defendants’ argument but noted that the opinion was not joined by a majority of the court.The Ninth Circuit found support for its conclusion that a national obscenity standard should be applied by examining the multiple concurrences and dissent of the other Justices in Ashcroft. Judge Fletcher noted that six Justices raised constitutional concerns over the application of a local community standard for defining obscenity in Internet cases.

This case represents a departure from the local community standard that had been applied following Miller and goes against the reasoning of the opinion of the Court in Ashcroft, but applies what some believe to be the practical reasoning necessary for balancing Internet communications, free speech, and obscenity concerns. Looking forward, OneNewsNow provides a brief opinion on how the Ninth Circuit’s decision may impact defenses raised by attorneys.

EU Court Advisor Supports Google Keyword Searches in Trademark Suit

On September 22, Reuters reported that an advocate general to the European Court of Justice, the EU’s highest court, stated that Google did not infringe trademark rights of luxury goods maker Louis Vuitton (LVMH). Google sells keywords that use the company’s trademarks, but Advocate General Poiares Maduro concluded that trademark protections do not extend to search advertising keywords because they are not considered a product sold to the public. ZDNet’s Richard Koman argues that this decision does not account for brand confusion arising from keyword searches, and demonstrates the court’s “misunderstanding of the Web as something tangential to ‘real’ commerce.” Although the Luxembourg-based court follows the opinions of its advocates general in most cases, the judges will give their final judgment at a later date.

Facebook Shuts Down Beacon Ad Software as Part of Lawsuit Settlement

Ars Technica reports that on September 18, Facebook announced it will shut down its controversial Beacon ad software as part of a settlement for a class-action privacy suit. The Beacon software, launched in November 2007, allowed off-Facebook activities to be published in users’ news feeds without their explicit consent. After over a year of legal disputes regarding the software, Facebook decided to settle with complaining users, agreeing to discontinue Beacon and offering $9.5 million to create a foundation that would “fund projects and initiatives that promote the cause of online privacy, safety, and security.” Facebook’s director of policy communications said that the company has “learned a great deal from the experience.” The settlement proposal still awaits a district court judge’s approval.

FCC Proposes Net Neutrality Rules for Internet Service Providers

The New York Times reports that on September 12, the chairman of the Federal Communications Commission proposed new regulations regarding net neutrality for Internet service providers. The proposal would bar providers from blocking or slowing Internet traffic on the basis of content. Consumer advocates of the policy say networks should not be able to deter users from accessing lawful Internet content or applications by restricting bandwidth. Wired’s Dylan Tweeny warns that the proposed rules may be difficult to enforce, stifle overall service due to capacity limitations, and decrease innovation in a market that has flourished without government intervention. The rules will formally be proposed in an open FCC meeting in October.

Paris Hilton Obtains Small Victory in Ninth Circuit

WSJ Blogs reports that the Ninth Circuit gave Paris Hilton the green light on August 31 to proceed in her lawsuit against Hallmark for its use of her image and the phrase “That’s Hot” in a birthday greeting card. The court made note of the similarities between the card and Hilton’s appearance on the television show “The Simple Life.” In support of Hilton, the court stated that she “has at least some probability of prevailing on the merits before a trier of fact.” The case name is Hilton v. Hallmark Cards.

Cable Companies No Longer Capped at 30% Market Share

The Washington Post reports that on August 28, the Court of Appeals for the D.C. Circuit in Comcast v. FCC invalidated an FCC rule that capped the market share of cable companies at 30%. The FCC supported the rule because it believed that cable companies with market share larger than 30% would harm consumers. The court rejected the FCC’s rule in part because it failed to show how consumers would be harmed by the large cable companies in the current market, given the competition between cable, satellite, and fiber optic providers.

Texas Links DNA to Criminal Records

WSJ Blogs reports that on September 1, a new law took effect in Texas will link DNA evidence to sexual assault suspects’ criminal records. The link will be maintained regardless of whether the statute of limitations has passed or the suspect has been tried. The law’s supporters want to ensure harsher penalties to these suspects should they face legal troubles in the future, as the record would be available to parole boards and prosecutors. Critics of the law, including the ACLU, fear the potential abuse of due process rights.

Florida Bar Wants Access to Certain Applicant Facebook Profiles

The Florida Board of Bar Examiners will now be requesting access to the Facebook profiles of certain applicants on a case-by-case basis. The Board has identified a number of categories of applicants that it will require access from, including persons with a history of certain types of legal experience or substance abuse. The Citizen Media Law Project notes many of the privacy concerns related to the Bar’s decision.

By Andrew Jacobs – Edited by Ezra Pinsky
Nat’l Cable & Telecomm. Association v. Fed. Commc’ns Comm’n, May 26, 2009, No. 08-1016
Slip opinion

On May 26, 2009, the Court of Appeals for the District of Columbia Circuit upheld the Federal Communications Commission’s (“FCC”) ban on future and existing exclusivity agreements between cable companies and the owners of apartment buildings and multi-unit developments (“MUDs”). Writing for a unanimous court, Judge Tatel held that the ban was both “well within the bounds” of the FCC’s statutory authority and in full accordance with the requirements of the Administrative Procedure Act (“APA”). The National Cable & Telecommunications Association (“NCTA”), a cable industry group, opposed the regulation.

Matthew Lasar summarizes the case while pointing out that this decision is “a victory for telcos like AT&T and Verizon.” However, he notes that many “MDU-like dwellings,” such as time share units and school dorms, are not subject to the ban. The Blog of Legal Times and Blawgletter also provide summaries of the case.

The FCC argued that the ban fell under section 628(b) of the Communications Act, which prohibits cable operators from “engag[ing] in … unfair or deceptive acts or practices, the purpose or effect of which is to hinder significantly or to prevent any multichannel video programming distributor [MPVD] from providing satellite cable programming or satellite broadcast programming to subscribers or consumers.”

The court agreed, using the two-step Chevron test to guide its analysis. First, it found that the statute does not “unambiguously foreclose[] the Commission’s interpretation.” Most importantly, the court reasoned, the ban falls within a literal reading of the statute: Exclusivity contracts prevent competing cable operators, which are considered MPVDs, from providing service, and thus programming, to consumers. The court rejected the NCTA’s argument that since the provision’s original purpose was merely to prevent cable companies from halting the flow of programming to competitors, indirect regulation on programming through broad regulation of service is unlawful. The court concluded that “while the statute’s text, structure, and history do support the proposition that Congress was, in fact, principally concerned with program hoarding,” it does not limit the FCC to regulating programming delivery in ways tailored to that problem alone. Proceeding to Chevron’s second step, the court found that whatever ambiguity section 628 did possess was reasonably resolved by the FCC’s interpretation.

In addition to upholding the regulation’s statutory authority, the court also rejected the argument that the FCC’s reversal of its 2003 decision allowing exclusivity contracts was arbitrary and capricious. The court pointed out that the FCC is allowed to change its position as long as it provides “a reasoned analysis,” and in this case their reasoning was “more than equal to our forgiving standard of review.” In particular, the court noted that the earlier decision to allow exclusivity contracts was explicitly based on the lack of a fully developed record regarding the effect that these contracts have on competition. However, the FCC’s extensive analysis since that decision is sufficient enough to support a reversal of their original position.

Finally, the court upheld the ban’s effect on existing exclusivity contracts. Petitioners had argued that the FCC’s actions violated “the APA’s requirements that ‘legislative rules … be given future effect only,’ or, alternatively, to agency action with harmful, secondarily retroactive effects that the Commission failed to consider.” The court responded that the FCC’s ban only affects the current situation, and does not act retroactively. Additionally, “the Commission did expressly consider the relative benefits and burdens of applying its rule to existing contracts and, after extensive analysis, concluded that banning enforcement of existing contracts was essential.”

Though Senior Circuit Judge Silberman “fully agree[d]” with Judge Tatel’s opinion, he wrote separately to highlight NCTA’s implicit reliance on Holy Trinity Church v. United States, 143 U.S. 457 (1892), the seminal case endorsing purpose-based, rather than plain-language, statutory interpretation.

The FCC hopes that as a result of the ban, “triple play” service—whereby video, telephone, and internet service are sold as a bundled package—will be more readily available in apartment buildings and other multi-unit dwellings. They found that triple play competition between telephone and cable companies will “spur[] deployment of advanced technology, and facilitate[] efficiency and simplicity in the market.”

Action by the Federal Communications Commission, by Second Report and Order (FCC 08-260)

On November 4, the Federal Communications Commission unanimously approved the use of unlicensed wireless devices that operate in “white spaces,” the unused spectrum between licensed broadcast television channels that can be used to provide broadband connectivity and other services similar to Wi-fi. The Commission’s approval extends to all WSDs that include a geolocation capability and a spectrum-sensing technology that will allow the device to determine what spectrum may be accessed at the particular location.

The decision comes after four years of debate, pitting an alliance of technology companies against parts of the entertainment industry. Companies such as Microsoft, Google, and Motorola urged the Commission to open the channels for general usage. A coalition comprised of broadcasters, theaters, sports franchises and other cell phone operators opposed the decision, arguing that white space devices (WSDs) operating within the unlicensed spectrum will cause interference in the neighboring licensed channels.

The New York Times, the BBC and ars techinca provide a summary of the Commission’s order. Larry Page, co-founder of Google and proponent of opening up white spaces, comments on the Commission’s approval. Andrew Seybold of FierceWireless, the wireless industry’s daily monitor, warns that despite the precautions undertaken by the Commission, the new devices will likely cause interference with current services. TechCrunch suggests that Google’s push for open use of white spaces is part of its strategy to create more connection points for mobile devices, including those powered by Android, the Google mobile device platform.

In a statement, FCC Chairman Kevin J. Martin called the approval of the use of the white spaces spectrum “a significant victory for consumers,” and said that it had the potential to improve wireless broadband connectivity and to bring about new Internet-based products and services. Addressing the concerns voiced by a coalition of broadcasters, who argued that WSDs may disrupt existing services, Chairman Martin noted that the Commission had taken the unusual step of conducting interference testing prior to approval to ensure that these devices could be deployed safely.

He emphasized that prior to entering the market, WSDs will undergo a rigorous certification process, and will be required to use geo-location to demonstrate that they can operate in a particular location without causing interference.

Commissioner Michael J. Copps issued a separate statement. He observed that few other engineering analyses conducted by the FCC had been as lengthy or as open as the present one, and acknowledged that testing had shown that there was merit in the initial positions argued for by each of the two opposing sides in the debate. Conceding that there can “never be metaphysical certainty when it comes to interference issues,” Copps maintained that the geo-location requirement and the testing and certification process the new devices will adequately protect the licensed users of the television band.

In a separate statement, Commissioner Jonathan S. Adelstein emphasized the significant potential the approval had for fostering competition and bringing broadband access to rural areas, and said that it will give the United States the opportunity to reclaim its place as a world leader in broadband deployment.

Although Adelstein suggested that in this instance, the Commission may have “put[] expediency ahead of an open process,” resulting in “unnecessary resentment from parties that believe they were not given a fair hearing,” he said that the independent engineering staff justified the decision on the basis of their expert analysis.

Commissioner Deborah Taylor Tate also issued a separate statement approving in part and dissenting in part. She recognized that allowing unlicensed use of white spaces would enable the use of entirely new services and devices, but cautioned that it would also pose a real risk of interfering with existing services. She highlighted that the Commission will create a database of existing operations in particular channels and geographic areas that will remain unavailable to unlicensed operators. Requiring providers to verify that channels are available prior to accessing them will ensure that broadcast operations will receive complete protection from interference, according to Tate.

CBS Corp. v. Federal Communications Commission
Third Circuit, July 21 2008, No. 06-3575
Slip Opinion

On July 21, the Third Circuit vacated an FCC order fining CBS $550,000 for the nine-sixteenths of one second broadcasting of Janet Jackson’s bare right breast during the halftime show of Super Bowl XXXVIII in February 2004. The court held that the FCC had departed from its prior policy in fining CBS for the “fleeting image” and that this change was “arbitrary and capricious” under the Administrative Procedure Act § 706. The court also held that Janet Jackson and Justin Timberlake were independent contractors with respect to CBS while performing at the half-time show and that CBS could not be held vicariously liable for their actions without proof of scienter.

The case was remanded for further proceedings consistent with its ruling; however, the court noted that any further action would be declaratory in nature, as the FCC cannot retroactively penalize CBS.

Ken Ferree, president of The Progress & Freedom Foundation (“PFF”) hailed the ruling as a reinforcement of First Amendment rights. Adam Thierer, a senior fellow at the PFF, expects the FCC to appeal the decision, as it did a Second Circuit opinion holding that the FCC’s policy sanctioning “fleeting expletives” was arbitrary and capricious.

Jonathan Rintels, Executive Director of the Center for Creative Voices in Media, also applauded the decision, focusing in particular on the “chilling” effect the FCC’s decisions might have on freedom of expression.

The Parents Television Council (“PTC”) was somewhat less pleased with the decision, which, in its view, “hijacked the will of the American people” and the “intent of Congress.”

Writing for the court, Chief Judge Scirica found that the FCC had a long-established policy that it would not take action against broadcasts of isolated or fleeting indecent material. The court rejected the FCC’s argument that its policy only applied to fleeting utterances and not fleeting images. It found instead that the distinction between words and images applied to CBS was a departure from the FCC’s prior policy. Analyzing the case under Motor Vehicle Manufacturers. Ass’n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 41 (1983), the court found that the agency could not change its policy without both notice and a reasoned explanation for the change. The FCC declined to acknowledge the policy change, let alone provide an explanation for it, and thus could not surmount the “arbitrary and capricious” standard.

In finding that Jackson and Timberlake were independent contractors, the court noted their significant control over the content and form of their performances as well as the one-time nature of the contract and the show. Additionally, the court reasoned that First Amendment considerations required scienter, some knowledge of wrongdoing, to be read into the statutory prohibition of broadcast indecency. Without some proof that CBS broadcasted with knowledge that the indecency would occur, the FCC could not find CBS liable.

Judge Rendell concurred with the majority in holding the FCC’s actions arbitrary and capricious but dissented with respect to the majority’s disposition on scienter and the decision to remand the case. Judge Rendell argued that, first, the majority’s discussion of scienter is dicta, and second, that CBS’s conduct was “willful” under the most reasonable interpretation of the term. Judge Rendell also argued that there was no need to remand the case as further proceedings would be unnecessary without the fine and the FCC could explain its change in policy in another case or issue a declaratory ruling.

By Debbie Rosenbaum — Edited by David Lawson

Comcast Comments to the Wireline Competition Bureau
FCC Request for Comment on Broadband Network Management Practices
FCC Request for Comment on Request for Declaratory Ruling on ISP Network Management Policies
Vuze, Inc. Petition for Rulemaking
FCC Internet Policy Statement

On February 13th, Comcast Corporation, one of the largest Internet service providers (“ISP”) in the United States, filed comments pursuant to two Requests for Comment issued by FCC’s Wireline Competition Bureau. The comments addressed 1) whether managing peer-to-peer (“P2P”) traffic generated by Comcast subscribers violates FCC’s Internet Policy Statement and 2) whether the agency should promulgate further regulations defining reasonable network management.

The FCC notices arose from an investigation launched earlier this year after Vuze, Inc., a company that uses P2P to legally distribute video content, filed a Petition for Rulemaking with FCC in objection to Comcast’s treatment of P2P connections initiated by Comcast subscribers.

In its comments, Comcast argues that the tools it uses minimize interference that would otherwise degrade the activities of all Comcast subscribers. The company requests that FCC not initiate a rulemaking proceeding to address which broadband network management practices are reasonable, and further requests that FCC declare that network management practices such as Comcast’s are reasonable and consistent with the Internet Policy Statement.

Peter Svensson of the AP (carried on Wired News) summarizes the story.
Nate Anderson of Ars Technica details Comcast’s argument.
Craig Aaron of Save the Internet argues that Comcast’s practices are much more harmful than the company admits.

At the center of the controversy are “reset packets” that Comcast’s network management software silently inserts into subscribers’ P2P uploads, which repeatedly interrupt the uploads, severely reducing throughput. Comcast urged FCC to declare this and similar network management practices “reasonable” within the meaning of its Internet Policy Statement, as well as fully consistent with the idea of net neutrality. The company further indicated that it changed its Terms of Service to make its practices more clear.

Network management, Comcast argued, is best left to the sound, good-faith judgment of the engineers and proprietors who run and own the networks and who are best able to remedy customer service issues promptly, rather than to government regulation. FCC Chairman Kevin Martin has generally been supportive of ISPs’ network management efforts, but has said providers like Comcast should be open about their practices.

FCC’s reaction to Comcast’s strong advocacy of its traffic management practices is likely to foreshadow how much leeway the agency will give to other ISPs to manage their own traffic in the future. If FCC determines that the practices constitute “reasonable network management,” other ISPs will likely adopt practices similar to Comcast’s.