Items tagged "News & Analysis"


A Different Opinion on the Ebay Patent Decision

May 19, 2006 News & Analysis , Patent , Policy Blog

Yesterday, I said that "[t]his week's Supreme Court decision in Ebay v. Mercexchange, 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. 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.' '

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House Judiciary Bill Preserves Net Neutrality

May 18, 2006 Network Neutrality , News & Analysis , Policy Blog

It 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

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.

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A 2006 Net Neutrality Campaign Ad

May 18, 2006 Network Neutrality , News & Analysis , Policy Blog

The 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 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.

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.

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Christian Coalition Supports Net Neutrality

May 17, 2006 Network Neutrality , News & Analysis , Policy Blog

The Christian Coalition earlier today announced its support for Net Neutrality. We're pleased to see that some conservative realize that the Internet enables everyone — from MoveOn to the Christian Coalition and the Gun Owners.

Here's their release:

Christian Coalition Announces Support for 'Net Neutrality' to Prevent Giant Phone and Cable Companies From Discriminating Against Web Sites

Washington D.C. — Today, Christian Coalition of America announced its support for the effort to amend pending telecom legislation in Congress in order to prevent the large phone and cable companies from discriminating against web sites.

Roberta Combs, the President of Christian Coalition of America said, "Christian Coalition is joining a broad array of organizations, representing consumers, businesses, and all ends of the political spectrum. The Coalition is committed to working on behalf of our supporters to ensure that the Internet remains the free marketplace of ideas, products and services that it is today."

Major telecom companies are laying plans to create tiered access to the Internet – and to charge extra fees to consumers and content providers in order to offer select web sites for "fast access" by consumers. Without "Net Neutrality", American consumers who want to pay for fast broadband access to the Internet will find out they don't actually have what they thought they were paying for. They won't have high-speed broadband access to the entire Internet; just the part that the phone and cable companies allow them to see.

The Internet is what it is today because every site, no matter how obscure, is just as accessible to every individual as any name brand site with a multi-million dollar budget. Every American has the opportunity to create their own site and say what they want to the entire world and have the same access to the world as anyone else. And consumers have the ability to connect with them.

Since the inception of the Internet, it has existed on phone lines, which were covered under what are known as "common carrier" regulations, which prevented discrimination, based on content. This principle helped make the Internet what it is today — a dynamic engine for free expression and economic growth.

Mrs. Combs said, "Under the new rules, there is nothing to stop the cable and phone companies from not allowing consumers to have access to speech that they don't support. What if a cable company with a pro-choice Board of Directors decides that it doesn't like a pro-life organization using its high-speed network to encourage pro-life activities? Under the new rules, they could slow down the pro-life web site, harming their ability to communicate with other pro-lifers – and it would be legal. We urge Congress to move aggressively to save the Internet — and allow ideas rather than money to control what Americans can access on the World Wide Web. We urge all Americans to contact their Congressmen and Senators and tell them to save the Internet and to support 'Net Neutrality'."

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San Jose Mercury News Endorses Net Neutrality

May 17, 2006 Network Neutrality , News & Analysis , Policy Blog

The San Jose Mercury News ran a great editorial today on Net Neutrality, called "Saving Internet Equality."

One hopes Sen. Boxer will quote it at tomorrow's Senate Commerce hearing. Normally, we wouldn't quote the whole thing. But this is an exception. Here's the text:

Saving Internet equality

Mercury News Editorial

The future of the Internet is in the hands of Congress, and Congress is about to mess it up.

The choice facing lawmakers is stark: keep the Internet as a decentralized network that no single company controls and where all users and all Web sites are treated equally; or hand control over it to an oligopoly of cable and telephone companies.

Shamefully, Congress appears inclined to do the latter by refusing to adopt so-called “network neutrality'' rules. It's a choice that would be disastrous for Internet users, for Internet companies and for innovation itself.

Network neutrality isn't new. Its basic tenets — that all users can access all legal content on the Internet and that all content providers are treated the same on the network — have been in effect since the birth of the Internet through regulations governing the old telephone network. But a series of court decisions and a vote of the Federal Communications Commission last year have voided those rules. And that has opened the door for phone and cable companies, which control Internet access, to change the rules of the game.

Phone companies such as AT&T and Verizon have already made it clear that they want to divide the Internet into slow and fast lanes. Web sites and services that pay them a toll will travel on the fast lane, while others will bump along on the slow lanes.

Telecom executives' first target is large, profitable Internet companies such as eBay, Google and Yahoo, which AT&T CEO Ed Whitacre has described as freeloaders. “What (Internet companies) would like to do is use my pipes free, but I ain't going to let them do that,'' he said.

But this is far more than a battle between Internet giants and telecom giants. Google and Yahoo may well be able to pay, but the impact on start-ups — and innovation — would be devastating.

Consider the nascent world of Internet video, which promises to be a free-for-all of ingenuity and creativity. With enough bandwidth, CNN, a public access channel or an amateur video producer could put up content for the entire Internet to enjoy. Scores of innovative start-ups are coming up with business models to exploit that creativity, by organizing the new content, making it searchable and delivering it effectively to millions of users.

But if cable and telephone companies become traffic cops and toll collectors, they will be in a position to decide which shows go on the fast lane and which get stuck in a lane too slow to be watched. That would turn Internet video into an online version of the cable system, where an intermediary controls the delivery of all content. The explosion in creativity would be snuffed out and the innovative start-ups and business models would never see the light of day.

Future technologies and industries could suffer the same innovation-crushing fate.

Outside the Bay Area, few lawmakers seem to understand that by not enacting network neutrality legislation, they'd be subverting the basic principles that have made the Internet into such a powerful force for economic growth. Perhaps, it's because they've been worn down by armies of lobbyists from the telephone and cable industries.

It's time for online users everywhere — those who search on Google, download songs from Apple, buy books from Amazon, run businesses on eBay, make phone calls on Skype or simply read e-mail and surf the Web — to let them know the Internet is too valuable to be sold off to special interests.

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New York park goers to get free Internet Wi-Fi

May 16, 2006 Municipal Wi-Fi , News , News & Analysis

AFP reports:

NEW YORK (AFP) – New York's Central Park and a number of other public spaces will become public Internet hubs starting this summer when the city's parks begin offering free wireless net access, the city government said.

"We expect Central Park to be launched in July, and the rest of the parks in the late summer," the Department of Parks and Recreation said. Among those green spaces going on-line for public Wi-Fi access will be Washington Square, Union Square, Brooklyn's Prospect Park and Flushing Meadows.

Here's the link

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Biting the Hand that Fed Him

May 1, 2006 Blog Posts , Broadcast Flag , News & Analysis

The word on the Hill is that Reps. Howard Berman and Darryl Issa will soon drop a companion bill to the PERFORM Act in the House sometime in the next week or so. This is the bill, that among other things, would require "radio flag" technology that would limit consumers' legal right to record songs off the radio. That Mr. Berman is a co-sponsor should come as no surprise – the member from Hollywood is the content industry's best friend. Mr. Issa is another story, however. He made his fortune in the consumer electronics business – car alarms, to be precise, and is a former Chair of the Consumer Electronics Association. It is no exaggeration to say that no industry has helped Mr. Issa achieve his current status than CE. Yet CEA is the biggest industry opponent of PERFORM. What gives? You may recall that Mr. Issa was the driving force behind the successful recall of California Governor Gray Davis, and that Issa himself was a candidate to replace him. This may be a gift to the content industry in order to secure support for his future statewide ambitions. In any event, please contact your Senator and ask them to oppose the PERFORM Act, and while you are at it, tell Reps. Berman and Issa not to introduce this ill-advised legislation in the House.

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Getting real about the Grokster case

February 8, 2005 News , News & Analysis , P2P

Over the next few months, the Supreme Court and–likely–Congress will resume a debate over rules that could determine whether consumers will continue to enjoy the benefits of many of the gadgets CNET covers.

The debate is specifically about what kind of legal liability–if any–technology manufacturers, financiers, Internet service providers, journalists and others should have if their actions "induce" another to commit copyright infringement.

By: Gigi Sohn, CNET

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Public Knowledge’s President Reacts to Peer-to-Peer Self-Help Bill

July 25, 2002 Fair Use , News & Analysis , Press Release

While enforcing the Copyright Act and preventing copyright infringement are worthy goals, Representative Berman's Peer-to-Peer Self-Help bill goes too far. Rep. Berman's bill gives the content industry great latitude to engage in harmful behavior that could affect lawful consumer activities, as well as unlawful behavior.

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