Communications Law Commons^™

Sex Is Less Offensive Than Violence: A Call To Update Obscenity Jurisprudence, Rachel Simon

Rachel Simon

This article addresses the gender bias presented by the disparate treatment of sex and violence under current obscenity jurisprudence. Under the controlling standard set forth by the Supreme Court in Miller v. California, sexual works may readily be regulated as obscenity, while violent works unequivocally may not. This article posits that this disparate treatment is the product of entrenched stereotypes about the way men and women “should” react to sex and violence, and notes the hypocrisy of failing to apply the same reasoning to assessments of violent versus sexual material.

First, reliance on “community standards” to define what material …

Fixing Frand: A Pseudo-Pool Approach To Standards-Based Patent Licensing, Jorge Contreras

Jorge L Contreras

Technical interoperability standards are critical elements of mobile telephones, laptop computers, digital files, and thousands of other products in the modern networked economy. Most such standards are developed in so-called voluntary standards-development organizations (SDOs) that require participants to license patents essential to the standard on terms that are “fair, reasonable and non-discriminatory” (FRAND). FRAND commitments are thought to avoid the problem of patent hold-up: the imposition of excessive royalty demands after a standard has been widely adopted in the market. While, at first blush, FRAND commitments seem to assure product vendors that patents will not obstruct the manufacture and sale …

Privacy And Missing Persons After Natural Disasters, Joel Reidenberg, Robert Gellman, Jamela Debelak, Adam Elewa, Nancy Liu

Center on Law and Information Policy

When a natural disaster occurs, government agencies, humanitarian organizations, private companies, volunteers, and others collect information about missing persons to aid the search effort. Often this processing of information about missing persons exacerbates the complexities and uncertainties of privacy rules. This report offers a road map to the legal and policy issues surrounding privacy and missing persons following natural disasters. The report first identifies the privacy challenges in the disaster context and provides some recent examples that demonstrate how disaster relief information sharing raises unique privacy concerns and issues. It then outlines current missing persons information sharing activities in the …

“Smut And Nothing But”: The Fcc, Indecency, And Regulatory Transformations In The Shadows, Lili Levi

Lili Levi

For almost a century, American broadcasting has received a lesser degree of constitutional protection than the print medium. Although many of the FCC’s regulations in “the public interest” have been upheld against First Amendment challenge on the ground that broadcasting is exceptional, the traditional reasons given for such exceptionalism – scarcity and pervasiveness – have become increasingly careworn. Fighting that consensus, the FCC has aggressively pursued the regulation of indecency on radio and television since 2003. When the FCC’s enhanced indecency prohibitions swept up U2 front-man Bono’s fleeting expletive on a music awards show, broadcasters finally thought they had found …

The Impact Of Data Caps And Other Forms Of Usage-Based Pricing For Broadband Access, Daniel A. Lyons

Daniel Lyons

In recent years, broadband providers have introduced data caps and other plans that charge customers based on use. While regulators have generally approved of this shift, some consumer groups fear that usage-based pricing will lead to higher prices and deteriorating service. They also fear data caps allow companies like Comcast to protect their cable businesses from upstarts like Netflix.

This article evaluates the merits of data caps and other usage-based pricing strategies. Usagebased pricing shifts more network costs onto heavier Internet users. This can reduce costs for others and make broadband more accessible to low-income consumers. Usage-based pricing can also …

Why Broadband Pricing Freedom Is Good For Consumers, Daniel A. Lyons

Daniel Lyons

From the introduction: Usage-based pricing has rapidly become one of the most high-profile topics in Internet policy. In the past few years, many broadband providers have migrated from all-you-can-eat flat-rate pricing to consumption-based pricing models such as tiered service plans or data caps. This trend has been most prominent in the wireless sector, where monthly limits were an almost inevitable solution to the surge in bandwidth demand unleashed by the smartphone revolution. Some fixed broadband providers have adopted much larger data caps for residential broadband use as well.

The Internet As The World's Biggest Copy Machine, And How Plaintiff's Bar Seeks To Monetize It, Daniel Lyons

Daniel Lyons

On February 23, 2013, Professor Lyons presented at the First Circuit Spring Meeting of the American Bar Association Student Division.

Institutionalized Word Taboo: The Continuing Saga Of Fcc Indecency Regulation, Christopher M. Fairman

Christopher M Fairman

Indecency regulation by the Federal Communication Commission and Supreme Court is the product of word taboo—the subconscious, emotional, involuntary avoidance of certain words out of fear that some harm will occur if they are spoken. Acting in tandem, the Court and the Commissioners create institutionalized word taboo based upon the assumption that broadcast media’s pervasive and intrusive presence into the home endangers unsupervised children. Technological innovation renders this premise invalid today, but institutionalized word taboo remains. This article (1) traces the rise of indecency regulation, (2) explains the invalidity of the assumptions used to justify it, (3) introduces word taboo …

Copyright Freeconomics, John M. Newman

John M. Newman

Innovation has wreaked creative destruction on traditional content platforms. During the decade following Napster’s rise and fall, industry organizations launched litigation campaigns to combat the dramatic downward pricing pressure created by the advent of zero-price, copyright-infringing content. These campaigns attracted a torrent of debate, still ongoing, among scholars and stakeholders—but this debate has missed the forest for the trees. Industry organizations have abandoned litigation efforts, and many copyright owners now compete directly with infringing products by offering licit content at a price of $0.

This sea change has ushered in an era of “copyright freeconomics.” Drawing on an emerging body …

The Implausibility Of Secrecy, Mark Fenster

Mark Fenster

Government secrecy frequently fails. Despite the executive branch’s obsessive hoarding of certain kinds of documents and its constitutional authority to do so, recent high-profile events—among them the WikiLeaks episode, the Obama administration’s celebrated leak prosecutions, and the widespread disclosure by high-level officials of flattering confidential information to sympathetic reporters—undercut the image of a state that can classify and control its information. The effort to control government information requires human, bureaucratic, technological, and textual mechanisms that regularly founder or collapse in an administrative state, sometimes immediately and sometimes after an interval. Leaks, mistakes, open sources—each of these constitutes a path out …

The Invalidation Of Mandatory Cable Access Regulations: Fcc V. Midwest Video Corp., Robert L. Clarkson

Pepperdine Law Review

No abstract provided.

A Barometer Of Freedom Of The Press: The Opinions Of Mr. Justice White , Michael J. Armstrong

Pepperdine Law Review

Since the Zurcher v. Stanford Daily decision which was authored by Justice Byron F. White, the news media has become increasingly concerned with its' first amendment protections from governmental searches. Since Justice White has been the voice of the United States Supreme Court on this very issue, the author submits that an examination of Justice White's media related opinions can serve as a "barometer" for the constitutional protections of the news media. The author examines the use of Justice White to the Supreme Court, his staunch adherence to stare decisis, and the historical foundation of the first amendment as they …

National Subscription Television V. S & H, Tv: The Problem Of Unauthorized Interception Of Subscription Television—Are The Legal Airwaves Unscrambled?, Thomas R. Catanese

Pepperdine Law Review

The unending stream of technological innovations that best exemplifies the electronic media has left the law in its wake. Because of rapid advancements in the forms communications may take, the law has sometimes been slow in effectively and rationally affording protection against the piracy of these new types of electronic media. One such type of electronic media is the transmission of over-the-air scrambled broadcasts, more properly "subscription" television, wherein a party pays a subscription fee to receive nonstandard television programming. National Subscription Television v. S & H, TV, in view of prior divided case law, settled the question of whether …

Dc Think Tank Tells Americans That Their Broadband Is Really Great, Daniel Lyons

Daniel Lyons

No abstract provided.

What Your Tweet Doesn't Say: Twitter, Non-Content Data, And The Stored Communications Act, Daniel Shickich

Washington Journal of Law, Technology & Arts

A federal district court in Virginia recently held that Twitter users have no privacy rights regarding non-content information associated with their use of Twitter. The court thus affirmed that the government may obtain Twitter users’ Internet Protocol (IP) addresses without notice to the users. The users in this case were alleged to be members of WikiLeaks. The government obtained an order of production in connection with grand jury proceedings, compelling Twitter to turn over IP address data to the government. After Twitter motioned to have the order unsealed, the alleged WikiLeaks members unsuccessfully attempted to intervene to quash the order …

Commercial Speech In Crisis: Crisis Pregnancy Center Regulations And Definitions Of Commercial Speech, Kathryn E. Gilbert

Michigan Law Review

Recent attempts to regulate Crisis Pregnancy Centers, pseudoclinics that surreptitiously aim to dissuade pregnant women from choosing abortion, have confronted the thorny problem of how to define commercial speech. The Supreme Court has offered three potential answers to this definitional quandary. This Note uses the Crisis Pregnancy Center cases to demonstrate that courts should use one of these solutions, the factor-based approach of Bolger v. Youngs Drugs Products Corp., to define commercial speech in the Crisis Pregnancy Center cases and elsewhere. In principle and in application, the Bolger factor-based approach succeeds in structuring commercial speech analysis at the margins of …

The Supreme Court Strikes Down The Public Broadcasting Editorial Ban: Federal Communications Commission V. League Of Women Voters, Michael R. Gradisher

Pepperdine Law Review

In Federal Communications Commission v. League of Women Voters, the United States Supreme Court struck down a statute on first amendment grounds which prohibited public broadcasters from editorializing. Those who favor the deregulation of broadcasting and the institution of a free market system hail the decision as a rare step in the right direction, after years of unquestioned congressional right to freely regulate broadcasting. They point to the Court's apparent willingness to reconsider its historical view of broadcasting, which has always received less first amendment protection than the print medium. However, the Court confirms its longstanding view that broadcasting may …

In Re Preserving The Open Internet: Reply Comments Of Professor Daniel A. Lyons, Daniel A. Lyons

Daniel Lyons

Reply Comments on FCC Proposed Rulemaking into Net Neutrality

Brief For Cato Institute Et Al. As Amici Curiae Supporting Petitioners, City Of Arlington Texas Et Al. V. Federal Communications Commission Et Al., Daniel A. Lyons, Jonathon H. Adler, Roderick M. Hills

Daniel Lyons

No abstract provided.

Copyright And The First Amendment: Freedom Or Monopoly Of Expression?, Henry S. Hoberman

Pepperdine Law Review

No abstract provided.