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A Different Opinion on the Ebay Patent Decision
Follow @gigibsohnYesterday, I said that "[t]his week's [Supreme Court decision in Ebay v. Mercexchange,](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=05-130&friend=nytimes) which held that a court must look to four equitable factors in determining whether an injunction should issue in a patent case, is unlikely to change" the ability of a patent infringer to avoid an injunction. That the Ebay case was nothing more than a "punt" by the Supreme Court was also the opinion of at least two of the [three patent law professors who joined me on a Federalist Society panel yesterday.]( http://www.publicknowledge.org/node/356) But a friend of PK who is a patent expert begged to differ: "Actually, I think the Supreme Court here accomplished what Congress has been unable to do: It restored to district courts the discretion to deny injunctions for equitable reasons, and reminded the Federal Circuit that it should review district court decisions for an abuse of discretion (thereby obliterating the Federal Circuit's "extraordinary circumstances" rule). It did not categorically disapprove of any of the factors relied on by the eBay district court in denying the injunction (and four justices expressly approved some of them), which suggests that on remand, there will be no injunction." N.B.: The "extraordinary circumstances" rule stated that requests for injunctions should be denied only in an "'unusual' case, under 'exceptional circumstances' and ' 'in rare instances . . . to protect the public interest.' '
Quick Analysis of the Sensenbrenner-Conyers NN Bill
Follow @gigibsohnThanks to our terrific colleague John Windhausen of Telepoly Consulting for this analysis of the [Sensenbrener-Conyers net neutrality bill (H.R. 5417) that was introduced today:](http://www.publicknowledge.org/node/358) • It is a violation of the Clayton antitrust Act for broadband providers to: a. fail to provide access to its broadband network on reasonable and nondiscriminatory terms and conditions to anyone to offer content, applications or services at least equal to the broadband provider's own services (or its affiliate's services); b. refuse to interconnect with other broadband providers; c. to block impair, discriminate or interfere with anyone's services or applications or content; d. to prohibit attachment of equipment that does not harm the network; e. to fail to disclose information about the broadband service. • If a broadband provider prioritizes traffic of a particular type, it must prioritize all traffic of that same type, with no additional fee. • Nothing prevents broadband providers from nondiscriminatorily: a. managing the network to promote security; b. give priority to emergency communications; c. prevent a violation of law or comply with a court order. "Affiliate" is defined to include anyone the broadband owner owns, controls or has a contract with. "Broadband Provider" is anyone "engaged in commerce" who offers a broadband service to the public, with or without a fee. "Broadband Service" is defined as any 2-way service and connects to the Internet at at least 200 kbps.
Moby and Markey on Net Neutrality
Today a Press event was held in support of Net Neutrality. The music artist Moby and Rep. Ed Markey were on hand. Below are some photos...
House Judiciary Bill Preserves Net Neutrality
Follow @artbrodskyIt was quite the news day for Net Neutrality. House Judiciary Committee Chairman Sensenbrenner and senior Democrat Conyers introduced a real Net Neutrality bill. Here's our news release: Public Knowledge Statement on Sensenbrenner/Conyers legislation Background: House Judiciary Committee Chairman F. James Sensenbrenner, Jr. (R-WI) and senior Democrat John Conyers, Jr. (D-Mich.) today introduced legislation (HR 5417) to preserve Net Neutrality. This statement is attributed to Gigi B. Sohn, president and co-founder of Public Knowledge: "We are very grateful to Chairman Sensenbrenner and to Ranking Member Conyers for introducing this legislation. We look forward to its consideration and support by the full House Judiciary Committee. "The bill squarely addresses the issue of the enormous market power of the telephone and cable companies as the providers of 98 percent of the broadband service in the country. The bill restores the principle of non-discrimination that allowed the Internet to flourish in the dial-up era, making certain that the same freedom and innovation will flourish in the broadband era without burdensome regulation." A copy of the bill is available [here](http://www.publicknowledge.org/pdf/hr5417-109.pdf) Earlier in the day at the Senate Commerce Committee, Net Neutrality was brought up as the key issue in the bill (S 2686) introduced by Commerce Committee Chairman Ted Stevens (R-Alaska). Senators and witnesses both characterized the issue as the one that could make, or break, the bill.
A 2006 Net Neutrality Campaign Ad
Follow @artbrodskyThe text of an ad you might hear or see in the next few months: Title: "Predators" Length: :30 Anncr: "Every year, thousands of innocent children are victimized on the Internet by vicious predators. It's a national disagrace. But (Sen./Rep. X) doesn't care. He voted to allow those who prey upon children to be free to continue their twisted ways. How do we know? Because Sen. X voted for Net Neutrality. It's time to send Sen. X a message, and to send him back home." Tagline: "I'm (candidate X) and I approved this message to protect our children." This is not (yet) real, nor is it a joke. It has come to this, that opponents of Net Neutrality are now claiming that children won't be protected online if we pass Net Neutrality legislation. How do we know this? From a [May 16 letter][letter] circulated to the Senate by Sens. Jim DeMint, R-S.C., a member of the Commerce Committee, and Sen. Sam Brownback, R-Kan., a former member of the Committee. [letter]:http://www.publicknowledge.org/pdf/brownback-demint-nn-20060516.pdf In their letter, the senators write that "opposing the heavy hand of regulation that network neutrality represents is critical if we are to maintain the Internet as an open, evolving, and market-based tool, and to protect children and familites from the negative aspects of Internet content that exist today." The argument is that the telephone and cable companies are spending billions to deploy broadband and are investing in new technologies to improve the Internet experience. The senators write: "These technologies also hold the promise of providing parents with new tools to protect their children and families as they explore online." Network Neutrality, they assert, would "be anything but neutral," they write. It would "penalize broadband access providers for making major improvements to the Internet." Net Neutrality, "to be enforced, presumbably by virtually unaccountable bureaucrats," would "reward content providers who demand regulation in order to tip the scales of Internet competition in their favor." And the capper: "It also threatens to deprive parents of new technologies they may use to protect their families from online harm." There are any number of arguable statements in this letter. The "unnamed bureaucrats" who would enforce the Net Neutrality regulations are, of course, the same ones who would enforce tighter indecency rules at the FCC advocated by many senators. No one is pursuing excessive regulation and no one is tipping the Internet in anyone's favor. If anything, Net Neutrality promises the opposite. But let's focus on the kids. And let's start with the history that the idea of providing blocking and screening technology is an issue that goes back at least 10 years. Companies like CyberPatrol and SurfControl, Net Nanny and CyberWatch started providing that very protection in the mid-90s. The GetNetWise effort, started by the Center for Democracy and Technology and the Internet Education Foundation, started in 1999, providing an online guide to tools to protect parents. Do an online search for Internet filterting and you will come up with dozens and dozens of companies that provide protection for parents. There are general filters, there are Christian filters, there are Jewish filters. There are ISPs that provide filtering as part of their service, as Earthlink and AOL do. (There were more ISPs, some which also provided filtering, but most closed down as a result of FCC decisions. That's another story.) And what are the Bell companies doing now to protect kids? What is a company like AT&T, which had $15.8 billion in revenue in the first quarter of this year doing now about blocking and filtering? Nothing. Subscribe to AT&T's DSL service and you get... Yahoo! What will the "AT&T Yahoo! High Speed Internet Package" do you you? Among other things, according to the AT&T web site, the service allows you to "Protect Your Children -- Parental controls allow you to choose what your children are able to access on the Internet." Verizon offers a choice -- Yahoo! or MSN. Those companies provide fine parental controls and it is a good thing that parents have access to them. And yet, they weren't created by the Bells. Some of the most famous words spoken on Capitol Hill occurred on June 9, 1954, by an attorney named Joseph Welch, in the course of some hearings called by the late Sen. Joseph McCarthy, (R-Wis.) to investigate the Army. At one point in the hearing, Welch asked McCarthy: "You've done enough. Have you no sense of decency, sir, at long last? Have you left no sense of decency?" I'm Art Brodsky, and I approved this blog post.
And Now For Something Completely Different...Patents
Follow @gigibsohnThis afternoon I participated in a [Federalist Society](http://www.fed-soc.org) panel that was billed as a discussion about whether IP law had become unbalanced, but actually focused entirely on patent law. I was completely out of my element. Regardless, I learned a lot, and even tried gamely to answer questions about whether the specialized Federal Circuit Court of Appeals that has sole jurisdiction over patent appeals is good policy and whether the Supreme Court has a coherent patent jurisprudence (probably not and no).
preservesthe openness of the Internet and the public's access to knowledge, promotes creativity through balanced copyright, and upholds and protects the rights of consumers to use innovative technology lawfully.
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