Digital Commons Network^™

Internet 3.0: Identifying Problems And Solutions To The Network Neutrality Debate , Robert M. Frieden

ExpressO

What Internet Service Providers (“ISPs”) can and cannot do to diversify services lies at the core of the debate over network neutrality. In prior generations ISPs had little incentive or technological capability to deviate from plain vanilla best efforts routing for content providers and from standard “all you can eat” subscription terms for consumer access to the World Wide Web. The next generation Internet has the technological capability and ISPs have the commercial motivation to offer “better than best efforts” routing and premium services for both content providers and consumers seeking higher quality of service and more reliable traffic delivery. …

Surfing Past The Pall Of Orthodoxy: Why The First Amendment Virtually Guarantees Online Law School Graduates Will Breach The Aba Accreditation Barrier, Nicholas C. Dranias

ExpressO

The impact of the constitutional dilemma created by the ABA’s aversion to Internet schooling is widespread. Currently, 18 states and 2 U.S. territories restrict bar exam eligibility to graduates of ABA-accredited law schools. Additionally, 29 states and 1 U.S. territory restrict admission to practice on motion to graduates of ABA-accredited law schools.

Although numerous lawsuits have been filed in ultimately failed efforts to strike down bar admission rules that restrict eligibility to graduates of ABA-accredited law schools, none has challenged the ABA-accreditation requirement based on the First Amendment’s prohibition on media discrimination. This Article makes that case.

Despite accelerating technological …

Space Program And Business In India - Legal Perspectives, Shashi Sharma

ExpressO

No abstract provided.

Content On The Fly: The Growing Need For Regulation Of Video Content Delivered Via Cellular Telephony, Jacob M. Chapman

ExpressO

Technological advancements in the last twenty years have substantially altered the ways in which people work, communicate, and are entertained. Many of these advancements have occurred in areas generally thought to fall under the regulatory purview of the Federal Communications Commission (FCC). These advancements have included the personal computer, the internet, digital cable, direct broadcast satellites (DBS), and cellular phones. Of all these increasingly available and inexpensive technologies, perhaps the most ubiquitous is the cellular phone. Thus far, the FCC has struggled to apply its public interest mandate to the ever shifting sands of technological development with varying degrees of …

Hit And Miss: Leverage, Sacrifice, And Refusal To Deal In The Supreme Court Decision In Trinko, Nicholas Economides

ExpressO

Under the rules of the Telecommunications Act of 1996, incumbent local exchange carriers, including Verizon, were obligated to lease parts of their local telecommunications network to any firm at “cost plus a reasonable profit” prices which could combine them at will, add retailing services and sell local telecommunication service as a rival to the incumbent. AT&T, an entrant in local telecommunications, leased parts of Verizon’s network. Trinko, a local telecommunications services customer of AT&T, sued Verizon alleging various anti-competitive actions of Verizon against AT&T, including that Verizon raised the costs of AT&T, its downstream retail rival. The Supreme Court held …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Network Neutrality Or Bias?--Handicapping The Odds For A Tiered And Branded Internet, Robert M. Frieden

ExpressO

Recent double digit billion dollar mergers of telecommunications firms consolidate both market share and market leadership by incumbent operators such as Verizon. These companies seek to exploit technological and market convergence by offering a triple play package of wired and wireless telephone service, video and Internet access. As well they need to develop new profit centers to compensate for declining revenues and market shares in traditional services such as wireline telephony.

While incumbent telecommunications operators have pursued new market opportunities, these ventures have not abandoned core management philosophies, operating assumptions and business strategies. Longstanding strategies for recovering investments, using a …

Information Privacy As A Function Of Facial Recognition Technology And Wearable Computers, Woodrow Barfield

ExpressO

As technological advances are made in the design of smart sensors, the issue of privacy in public places, first discussed by Warren and Brandeis in 1890, becomes an important topic for law and policy. This paper examines issues of privacy that are impacted when an individual’s image is recorded by a video-based wearable computer, analyzed using facial recognition software, and uploaded to the internet. While the Constitutional basis of search and seizure law for individual’s placed under video surveillance is reviewed, a particular focus of the paper is on a less investigated but emerging area of concern, the video recording …

Unwarranted Fears Mask The Benefits Of Network Diversity: An Argument Against Mandating Network Neutrality, Elvis Stumbergs

ExpressO

The rapid development of the Internet has necessitated an update to Federal telecommunications laws. Recent Congressional efforts to enact such an update, however, have spawned a fiery debate over a somewhat nebulous concept: network neutrality. The debate concerns the way that Internet access providers handle the data traffic being sent over their networks. These providers would like the option to offer some of their customers, web site hosting companies and similar entities, additional services that would essentially result in these customers’ content loading faster, more reliably, or more securely than others not receiving such priority treatment. Yet, this proposed “diversity” …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Access To Audiences As A First Amendment Right: Its Relevance And Implications For Electronic Media Policy, Philip M. Napoli, Sheea T. Sybblis

ExpressO

When the issue of speakers’ rights of access arises in media regulation and policy contexts, the focus typically is on the concept of speakers’ rights of access “to the media,” or “to the press.” This right usually is premised on the audience’s need for access to diverse sources and content. In contrast, in many non-mediated contexts, the concept of speakers’ rights of access frequently is defined in terms of the speaker’s own First Amendment right of access to audiences. This paper explores the important distinctions between these differing interpretations of a speaker’s access rights and argues that the concept of …

Opening Bottlenecks: On Behalf Of Mandated Network Neutrality, Bill D. Herman

ExpressO

This paper calls for mandated “network neutrality,” the principle that broadband service providers (BSPs) should generally treat all nondestructive data equally. Without such a mandate, BSPs will likely begin charging content providers for the right to send data at the fastest speeds available. The present frequency with which BSPs block some data entirely will also likely increase.

Neutral networks are preferable for two key reasons. First, they spawn innovation, as illustrated by the explosive online innovation to date. Second, neutral networks better distribute communication power, promoting First Amendment values. Extant and likely future acts of discrimination erode both goals. The …

Regulatory Status Of Voip In The Post-Brand X World, Jerry Ellig

ExpressO

During the past several years, the Federal Communications Commission has engaged in a series of rulemakings to determine the regulatory status of Voice over Internet Protocol (VoIP). The Supreme Court’s Brand X decision clarifies that even if the FCC’s determination conflicts with that of a court, the FCC’s judgment holds sway as long as the decision is reasonable. We believe that VoIP should be classified as an information service, rather than a telecommunications service, for several reasons. First, the Internet Protocol nature of VoIP technology means that it functions like an information service, rather than a telecommunications service. Second, in …

Catch 1201: A Legislative History And Content Analysis Of The Dmca Exemption Proceedings, Bill D. Herman, Oscar H. Gandy

ExpressO

17 USC Section 1201(a)(1) prohibits circumventing a technological protection measure (TPM) that effectively controls access to a copyrighted work. In the name of mitigating the innocent casualties of this new ban, Congress constructed a triennial rulemaking, administered by the Register of Copyrights, to determine temporary exemptions. This paper considers the legislative history of this rulemaking, and it reports the results of a systematic content analysis of its 2000 and 2003 proceedings.

Inspired by the literature on political agendas, policymaking institutions, venue shifting, and theories of delegation, we conclude that the legislative motivations for Section 1201 were laundered through international treaties, …

Digital Wars -- Legal Battles And Economic Bottlenecks In The Digital Information Industries, Curt A. Hessler

ExpressO

The Digital Age has spawned major legal battles over the fundamental principles of intellectual property law and antitrust law. These diverse struggles can best be analyzed using the basic norm of "value added" from neo-classical normative economics. This analysis suggests that current intellectual property doctirnes provide excessive protection and current antitrust doctrines remain awkward in dealing with the cross-market leveraging of monopoly power in the presence of "natural monopolies" created by network effects.

Digital Wars -- Legal Battles And Economic Bottlenecks In The Digital Information Industries, Curt A. Hessler

ExpressO

The Digital Revolution has created the apparent anomaly that information, though very cheap to create and near costless to share, is managed by industries that are increasingly concentrated and roiled by endless legal warfare. This paper surveys the major legal battles by subjecting all of them to the familiar norm of "maximizing economic value added", as defined by neo-classical "welfare economics". The various legal wars are traced to defects and confusions in current legal approaches to intellectual property (the "property wars") and to antitrust doctrines (the "monopoly wars").

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Of Rainbows And Rivers: Lessons For Telecommunications Spectrum Policy From Transitions In Property Rights And Commons In Water Law, Dale B. Thompson

ExpressO

A number of industries utilize the telecommunications spectrum to provide billions of dollars of services. However, some have noted that technological development and implementation of spectrum applications have not progressed as fast in the United States as in other parts of the world To improve technological development, many have recommended significant changes in United States policy of allocating spectrum, some based on a “property rights” approach, and others based on a “commons” approach. This article takes a novel approach to this problem, by applying lessons from our two hundred year history of water law to spectrum policy. Also, instead of …

A Model For Emergency Service Of Voip Through Certification And Labeling, Patrick S. Ryan, Tom Lookabaugh, Douglas Sicker

ExpressO

Voice over Internet Protocol (VoIP) will transform many aspects of traditional telephony service, including the technology, the business models, and the regulatory constructs that govern such service. Perhaps not unexpectedly, this transformation is generating a host of technical, business, social, and policy problems. In attempting to respond to these problems, the Federal Communications Commission (FCC) could mandate obligations or specific solutions to VoIP policy issues; however, it is instead looking first to industry initiatives focused on the key functionality that users have come to expect of telecommunications services. High among this list of desired functionality is user access to emergency …

An Economic Theory Of Infrastructure And Commons Management, Brett M. Frischmann

ExpressO

In this article, Professor Frischmann combines a number of current debates across many disciplinary lines, all of which examine from different perspectives whether certain resources should be managed through a regime of private property or through a regime of open access. Frischmann develops and applies a theory that demonstrates there are strong economic arguments for managing and sustaining openly accessible infrastructure. The approach he takes differs from conventional analyses in that he focuses extensively on demand-side considerations and fully explores how infrastructure resources generate value for consumers and society. As a result, the theory brings into focus the social value …

Communication Breakdown?: The Future Of Global Connectivity After The Privatization Of Intelsat, Kenneth D. Katkin

ExpressO

In 1971, 85 nations (including the United States) formed the International Telecommunications Satellite Organization “INTELSAT,” a public intergovernmental treaty organization. INTELSAT was charged with operating the world’s first global telecommunications satellite system, in order to guarantee the interconnectedness of the world’s communications systems and the availability of international telecommunications service to every nation on earth. By the late 1980s, however, INTELSAT’s operations began to experience substantial competition from the private sector. In 2000, the proliferation of privately-owned telecommunications satellites and transoceanic fiber optic cables led the U.S. Congress to mandate the privatization of INTELSAT. That privatization process began in 2001, …