Internet Law Commons^™

Derailed By The D.C. Circuit: Getting Network Management Regulation Back On Track, Edward B. Mulligan V

Federal Communications Law Journal

As the Internet continues to play a more central role in the daily lives of Americans, concerns about how Internet service providers manage their networks have arisen. Responding to these concerns and recognizing the importance of maintaining the open and competitive nature of the Internet, the FCC has taken incremental steps to regulate network management practices. Perhaps the most significant of these steps was its August 2008 Memorandum Decision and Order in which the FCC condemned Comcast Corporation's network management practices as "discriminatory and arbitrary." In that Order, the FCC required that Comcast (1) adopt new practices that complied with …

Thwack!! Take That, User-Generated Content!: Marvel Enterprises V. Ncsoft, Carl Michael Szabo

Federal Communications Law Journal

Comic-book heroes show us how to be valiant, how to fight for those less fortunate, and, in some circumstances, how to combat those who break the law. Such is the situation in the case of Marvel Enterprises, Inc. v. NCSofl Corp., a battle between user-generated content and the copyright violations that resulted.

While the issue of copyright liability has been seen in hundreds of comments and notes from courts and attorneys alike, the issue of copyright liability on the internet remains an open question that if not addressed, could endanger the protection afforded to authors. Federal and state suits have …

The Sound Of Money: Securing Copyright, Royalties, And Creative "Progress" In The Digital Music Revolution, Armen Boyajian

Federal Communications Law Journal

Academics and popular critics alike want to distill, reform, or altogether destroy U.S. copyright law as we know it. Much of this stems from animosity toward the old-guard record industry's alleged practices of overcharging consumers, underpaying royalties to artists, and suing teenagers and grandmas. But what those calling for reform all seem to neglect is a tiny but inevitable fact: for the first time in history, composers and recording artists can keep their copyrights.

Tangible media sales are being replaced by P2P file sharing, retail downloads, and streaming Webcasts. Digital technologies and wireless networks have opened prime channels for music …

The Broadband Adoption Index: Improving Measurements And Comparisons Of Broadband Deployment And Adoption, T. Randolph Beard, George S. Ford, Lawrence J. Spiwak, Michael Stern

Federal Communications Law Journal

Countries around the world are increasingly concerned as to whether the adoption of broadband technology by their respective citizens is sufficient to support economic growth and social development. Unfortunately, such concerns are often expressed in terms of where a country ranks among its peers by means of raw adoption numbers. Such raw data are often misleading and incomplete. In this Article, we propose a different and more policy-relevant approach to adoption measurement. We develop a value-based Broadband Adoption Index (BAI) that compares the actual value to society that results from the adoption of broadband technology to a target level of …

Internet Governance And Democratic Legitimacy, Oliver Sylvain

Federal Communications Law Journal

Even as the Internet goes pop, federal policymakers continue to surrender their statutory obligation to regulate communications in the first instance to extralegal nongovernmental organizations comprised of technical experts. The FCC's adjudication of a dispute concerning a major broadband service provider's network management practices is a case in point. There, in the absence of any enforceable legislative or regulatory rule, the FCC turned principally to the transmission principles of the Internet Engineering Taskforce, the preeminent nongovernmental Internet engineering standard-setting organization. This impulse to defer as a matter of course to such an organization without any legal mechanism requiring as much …

Future Imperfect: Googling For Principles In Online Behavioral Advertising, Brian Stallworth

Federal Communications Law Journal

In a remarkably short time, Google, Inc. has grown from two people working in a rented garage to a pervasive Internet force. Much of Google's unprecedented success stems from online advertising sales which employ behavioral advertising techniques-techniques that track consumer behavior--thereby increasing relevance and decreasing the cost of reaching a targeted audience. In the same span that saw Google's inception and explosive online dominance, the Federal Trade Commission has struggled to define not only the privacy issues involved in online behavioral advertising, but also the practice of behavioral advertising itself. Freed from the restraints of comprehensive federal laws and restrictive …

Behavioral Advertisement Regulation: How The Negative Perception Of Deep Packet Inspection Technology May Be Limiting The Online Experience, Andrea N. Person

Federal Communications Law Journal

Privacy concerns associated with information available on the Internet has become a central focus for policymakers in Washington, D.C., and around the world. Specifically, the use of deep packet inspection (DPI) technology to offer behavioral advertising on the Internet has become the focus of policy discussions. While there are legitimate concerns related to improper use of this technology, the benefits of the proper use of DPI should not be overlooked. This Note asks how increasing regulatory barriers to limit online behavioral advertising could affect the consumer's experience online. To answer this question, this Note first looks at what DPI is, …

Fulfilling Government 2.0'S Promise With Robust Privacy Protections, Danielle Keats Citron

Faculty Scholarship

The public can now “friend” the White House and scores of agencies on social networks, virtual worlds, and video-sharing sites. The Obama Administration sees this trend as crucial to enhancing governmental transparency, public participation, and collaboration. As the President has underscored, government needs to tap into the public’s expertise because it doesn’t have all of the answers. To be sure, Government 2.0 might improve civic engagement. But it also might produce privacy vulnerabilities because agencies often gain access to individuals’ social network profiles, photographs, videos, and contact lists when interacting with individuals online. Little would prevent agencies from using and …

Advancing Consumer Interests Through Ubiquitous Broadband: The Need For A New Spectrum, Meredith Attwell Baker

Federal Communications Law Journal

Comprehensive and long-term spectrum reform can play a critical role in the FCC's development of a National Broadband Plan and in its consideration of Open Internet rules. More efficient and intensive use of the nation's spectrum resources would help provide a path to greater broadband deployment, competition and innovation for all consumers. Wireless and mobile technologies hold great promise to offer consumers new services to complement, extend, or even replace existing broadband offerings. A comprehensive review of the nation's spectrum policy is, therefore, necessary to ensure that wireless and mobile broadband services are not hamstrung by outdated rules or command-and-control …

Creating Effective Broadband Network Regulation, Daniel L. Brenner

Federal Communications Law Journal

The Internet is central to the business and pastimes of Americans. Calls for increased regulation are ongoing, inevitable, and often justified. But calls for "network neutrality" or "nondiscrimination" assume with little hesitation federal agency competence to give predictable and accurate meaning to these terms and create regulations to implement them. This Article's chief contribution to Internet policy debate is to focus attention on the likelihood of successful FCC Internet regulation-a key assumption of some advocates.

The Article analyzes three characteristics that hobble the FCC, which is the likeliest federal agency to provide prescriptive rules. First, the record for the agency …

Network Neutrality Between False Positives And False Negatives: Introducing A European Approach To American Broadband Markets, Jasper P. Sluijs

Federal Communications Law Journal

Network neutrality has become a contentious issue both in Europe and the United States. Regulators on both sides of the Atlantic face digital divides in their society, and are confronted with potentially conflicting policy goals-to incentivize private investment in next-generation broadband while maintaining "neutral" and competitive broadband networks.

This Article compares nascent American and European network neutrality policy in terms of regulatory error costs. Emerging markets, such as broadband, are more likely to be affected by regulatory errors, and these errors have graver consequences in emerging markets than in regular markets. U.S. telecommunications policy traditionally has advanced a trial-and-error approach …

Whose Burden Is It Anyway? Addressing The Needs Of Content Owners In Dmca Safe Harbors, Greg Janson

Federal Communications Law Journal

Much of today's network neutrality debate addresses concerns that cable providers will limit access to competing Web-based services delivering multimedia content. While proposals to mandate nondiscrimination for all Internet traffic surely will help create a competitive environment where online entertainment providers can prosper, ISP interference is not the only threat. Online entertainment sites that relay user-generated content are threatened by crippling litigation brought by copyright holders for actions taken by third parties using their services. Reliance on the safe harbors provided in the Digital Millennium Copyright Act has, in most cases, proved unsuccessful. This Note addresses the concerns of both …

Virtually Enabled: How Title Iii Of The Americans With Disabilities Act Might Be Applied To Online Virtual Worlds, Joshua Newton

Federal Communications Law Journal

The rise and popularity of online virtual worlds, such as World of Warcraft and Second Life, holds significant promise for people with disabilities. For people who are unable to easily leave home or travel, virtual worlds provide a public venue, wherein people may interact freely without the social stigma that accompanies disability. However, access to these virtual worlds may be inhibited by physical, visual, or aural impairments, and virtual-world developers can be hostile to modifying their products to mitigate these difficulties. Thus, some disability advocates have turned to Title III of the Americans with Disabilities Act, arguing that places of …

Implications Of The Internet For Quasi-Legislative Instruments Of Regulation, Peter L. Strauss

Faculty Scholarship

It is a quarter century since I began telling my Administrative Law students that they had better be watching the Internet and how agencies of interest to them were using it, as they entered an Information Age career. The changes since then have been remarkable. Rulemaking, where the pace has perhaps been slowest, is now accelerating into the Internet, driven by a President committed to openness and consultation. This paper seeks little more than to point the reader toward the places where she can find the changes and watch them for herself.

Trustworthiness As A Limitation On Network Neutrality, Aaron J. Burstein, Fred B. Schneider

Federal Communications Law Journal

The policy debate over how to govern access to broadband networks has largely ignored the objective of network trustworthiness-a set of properties (including security, survivability, and safety) that guarantee expected behavior. Instead, the terms of the network access debate have focused on whether imposing a nondiscrimination or "network neutrality" obligation on network providers is justified by the condition of competition among last-mile providers. Rules proposed by scholars and policymakers would allow network providers to deviate from network neutrality to protect network trustworthiness, but none of these proposals has explored the implications of such exceptions for either neutrality or trustworthiness.

This …

Unlocking The Wireless Safe: Opening Up The Wireless World For Consumers, Adam Clay

Federal Communications Law Journal

Facing resistance to the use of its Voice-over-Internet Protocol application on mobile phones, in February 2007, Skype Communications filed a petition with the FCC asking for application of the Carterfone standards to the wireless phone industry. This Note discusses Carterfone and the merits of Skype's petition in light of the recent auction of the C Block, which carries open network requirements, and developments in wireless technology. This Note argues that the FCC should require carriers to provide technical standards for access to their networks, whereby individuals will be able to connect any approved device and application of their choosing.

The Never-Ending Limits Of § 230: Extending Isp Immunity To The Sexual Exploitation Of Children, Katy Noeth

Federal Communications Law Journal

In 2006, the U.S. District Court for the Eastern District of Texas extended civil liability to Yahoo! under § 230 of the Communications Decency Act so that it could not be sued for knowingly profiting from a Web site where members exchanged sexually explicit pictures of minors. The court found that the reasoning of the seminal § 230 case, Zeran v. AOL, was analogous and that policy considerations mandated its holding.

This Note argues that a multifaceted approach is needed to prevent future courts from following that decision, including an amendment to § 230 that would impose civil liability upon …

The Riaa, The Dmca, And The Forgotten Few Webcasters: A Call For Change In Digital Copyright Royalties, Kellen Myers

Federal Communications Law Journal

Emerging webcasting technology is playing an increasing role in modem society. The ease of use of webcast technology has brought about an increased user base as well as an increased viability for small webcasting businesses. However, the mix-tape genre of independent Internet radio has been financially and legislatively abused as a forerunner of rapidly advancing digital technology and concerns over protecting copyright royalties. This Note argues for a revision of the DMCA to provide a middle ground between protecting copyrighted works and allowing the continued existence of Internet radio.

Fcc Jurisdiction Over Isps In Protocol-Specific Bandwidth Throttling, Andrew Gioia

Michigan Telecommunications & Technology Law Review

Over the past decade, the Internet has matured from its dial-up infancy into the nation's dominant communications infrastructure. Such rapid growth and accessibility--while fostering free speech and innovation like nothing before--has nonetheless created complex regulatory and policy questions for both the Federal Communications Commission (FCC) and the cable companies providing the nation's broadband Internet access. For instance, Comcast, one such Internet provider, has recently brought to the fore the question of how, and to what extent, the FCC can ensure an open and accessible Internet through the company's recent actions in selectively targeting and interfering with the connections of certain …

A New Deal For End Users? Lessons From A French Innovation In The Regulation Of Interoperability, Jane K. Winn, Nicolas Jondet

Articles

In 2007, France created the Regulatory Authority for Technical Measures (lAutoritj de Rdgulation des Mesures Techniques or ARMT), an independent regulatory agency charged with promoting the interoperability of digital media distributed with embedded "technical protection measures" (TPM), also known as "digital rights management" technologies (DRM). ARMT was established in part to rectify what French lawmakers perceived as an imbalance in the rights of copyright owners and end users created when the European Copyright Directive (EUCD) was transposed into French law as the "Loi sur le Droit d'Auteur et les Droits Voisins dans la Société de l'Information" (DADVSI).

ARMT is both …

The Future Of Internet Regulation, Philip J. Weiser

Publications

Policymakers are at a precipice with regard to Internet regulation. The Federal Communications Commission's ("FCC") self-styled adjudication of a complaint that Comcast violated the agency's Internet policy principles (requiring reasonable network management, among other things) clarified that the era of the non-regulation of the Internet is over. Equally clear is that the agency has yet to develop a model of regulation for a new era. As explained in this Article, the old models of regulation - reliance on command-and-control regulation or market forces subject only to antitrust law - are doomed to fail in a dynamic environment where cooperation is …

The Internet's Public Domain: Access To Government Information On The Internet, Susan Nevelow Mart

Publications

This article surveys the types and amounts of information that have been removed from the Internet since September 11th. Information has been removed in the name of national security as well as for reasons of seeming political expediency. After discussing the bases of some of the rationales for removing the information, and the legal underpinnings of continued access, the article suggests several forms of advocacy that could be used to return the information to the public's domain.

Maintaining Government Accountability: Calls For A "Public Use" Beyond Eminent Domain, Gregory S. Knapp

Indiana Law Journal

No abstract provided.

Passport Files: Privacy Protection Needed For All Americans: Hearing Before The S. Comm. On The Judiciary, 110th Cong., July 10, 2008 (Statement Of Marc Rotenberg, Adjunct Prof. Of Law, Geo. U. L. Center), Marc Rotenberg

Testimony Before Congress

No abstract provided.

Technological Due Process, Danielle K. Citron

Faculty Scholarship

Distinct and complementary procedures for adjudications and rulemaking lie at the heart of twentieth-century administrative law. Due process required agencies to provide individuals notice and an opportunity to be heard. Agencies could foreclose policy issues that individuals might otherwise raise in adjudications through public rulemaking. One system allowed focused advocacy; the other featured broad participation. Each procedural regime compensated for the normative limits of the other. Both depended on clear statements of reason.

The dichotomy between these procedural regimes has become outmoded. This century's automated decision-making systems collapse individual adjudications into rulemaking while adhering to the procedural safeguards of neither. …

Rethinking The Communications Decency Act: Eliminating Statutory Protections Of Discriminatory Housing Advertisements On The Internet, James D. Shanahan

Federal Communications Law Journal

The recent decision in Craigslist signals a drastic reduction in the effectiveness of the prohibition on discriminatory housing advertisements under the Fair Housing Act ("FHA"). Section 230 of the Communications Decency Act gives blanket immunity to Internet Content Providers from publisher liability for content originating from third parties. One of the effects of this immunity is the creation of a monopoly for discriminatory advertisements otherwise proscribed by the FHA. This Note argues that the simplest solution for Congress is to adjust the language of § 230 by adding the FHA to the list of exceptions to statutory immunity.

Keeping The Internet Neutral?: Tim Wu And Christopher Yoo Debate, Tim Wu, Christopher Yoo

Federal Communications Law Journal

"Net neutrality" has been among the leading issues of telecommunications policy this decade. Is the neutrality of the Internet fundamental to its success, and worth regulating to protect, or simply a technical design subject to improvement? In this debate-form commentary, Tim Wu and Christopher Yoo make clear the connection between net neutrality and broader issues of national telecommunications policy.

Who Controls The Internet? A Review, Deborah J. Salons

Federal Communications Law Journal

Book Review: Who Controls the Internet? Illusions of a Borderless World, Jack Goldsmith and Tim Wu, Oxford University Press 2006.

Ms. Salons reviews Who Controls the Internet? Illusions of a Borderless World, Oxford University Press, 2006. Authored by Jack Goldsmith and Tim Wu, the book provides a history of the Internet and analyzes the nexus between globalization and government coercion. The book focuses on how these agents have shaped and developed the Internet as we are familiar with it today.

When Second Comes First: Correcting Patent’S Poor Secondary Incentives Through An Optional Patent Purchase System, Jordan Barry

ExpressO

As research has advanced, technologies have become more closely knit, and the relationships between them—both complementary and competitive—have become increasingly important. Unfortunately, the patent system’s use of monopoly power to reward innovators creates inefficient results by overly encouraging the development of substitute technologies and discouraging the development of complementary technologies. This paper explains how an optional patent purchase system could help ameliorate such problems and discusses the implications of such a system.

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 …