On Monday, August 9, 2010 Verizon Communications and Google proposed an open Internet framework as an outline for draft federal legislation – a framework that the two companies believe will safeguard a Net neutral Internet without excluding prospective service options for network operators if adopted.  Citing to consumer protection and the promotion of the continued investment in broadband access, the proposal posits that the framework should include, among other things: full FCC enforcement of openness principles that ensure consumer access to all legal content on the Internet and freedom to use any legal applications, services, and devices; a prohibition against discriminatory practices, such as a prioritization of Internet traffic; transparency rules requiring disclosure in plain language; and opportunity for an ISP complying with the openness principles to offer other additional or differentiated services.

Although the proposal holds no actual authority, it is nonetheless controversial and has been criticized by many.  For example, under the proposal “the FCC could impose a forfeiture of up to $2,000,000 for knowing violations of the consumer-protection or non-discrimination provisions,” a fine much too low for some critics.  The proposal is also said to not go far enough in that it exempts mobile Internet traffic, save the transparency requirement.  Others claim that the proposal allows network operators to implement “reasonable network management” techniques even if the management would otherwise violate Net neutrality, such as prioritizing some classes of Internet activity like video “to reduce or mitigate the effects of congestion on its network.”

The proposal highlights the ongoing struggle between network neutrality proponents and opponents and the need to move the process forward.  In the words of the authors of the proposal, Eric Schmidt, CEO of Google, and Ivan Seidenberg, CEO of Verizon: “There are hundreds of millions of Internet users in the United States, and no two companies should be so presumptuous as to think they can solve this challenge alone.  It is up to policymakers to establish broadband policy for the country.”  Only time will tell how the policymakers react to the proposal.  We shall see.

While consumers may associate the phrase “patent pending” with newer, better products, improper use of this phrase can result in a fine up to $500 for each article falsely marked.  Under 35 U.S.C. 292(a), anyone may bring a lawsuit, where half the damages shall go to the government, against the manufacturer who falsely marks the product with the word “patent,” including  ”patent pending” and “patent applied for.”   However, the manufacturer’s intent is crucial, as one who falsely marks a product can only be liable if the purpose of the marking was to deceive the public.  The primary cause of the offense has not been marketing new products, but rather the expiration of patents for the marked products without the manufacturer’s knowledge.  Thus, the question of liability often relies on the relationship between knowledge and intent of the manufacturer.

The Court of Appeals for the Federal Circuit recently addressed this relationship in Pequignot v. Solo Cup.  In this case, after Solo became aware that it was producing cup lids marked with expired patents, it included a marking stating the lids “may be covered” by U.S. patents.  The court held that articles marked with expired patent numbers are falsely marked and that knowledge of markings with expired patents creates a rebuttable presumption of intent to deceive.  Thus, although Solo was aware of its false marking, it provided evidence demonstrating no intent to deceive and was not liable for false marking.  This decision was good news for Solo, as Pequignot had accused Solo of falsely marking at least 21,757,893,672 articles and sought an award of $500 per article to be split with the government.

On Thursday, June 17 the FCC formally began the process to reclassify broadband from an “information service,” under Title I of the Communications Act, to a “telecommunications service,” under Title II of the Act. By a 3-2 margin the Commission adopted a Notice of Inquiry, which opens the regulatory proceeding, asking for public comments on the FCC’s proposed reclassification regulations. Specifically, the FCC is seeking comments on which classification is best suited for modern, effective broadband regulation:

“[W]e seek comment on whether our existing legal framework adequately supports the Commission’s previously stated policy goals for broadband. First, we ask whether the current information service classification of broadband Internet service can still support effective performance of the Commission’s core responsibilities. Second, we ask for comment on the legal and practical consequences of classifying the Internet connectivity component of broadband Internet service as a “telecommunications service” to which the full weight of Title II requirements would apply, and whether such a classification would accurately reflect the current market facts. Finally, we identify and invite comment on a third way, under which the Commission would classify the Internet connectivity portion of broadband Internet service as a telecommunications service but would simultaneously forbear, using the section 10 authority Congress delegated to us, from all but a small handful of provisions necessary for effective implementation of universal service, competition and small business opportunity, and consumer protection policies.”

The FCC will use these comments to write reclassification regulations, if it chooses to do so. While merely launching this Notice does not mean the FCC will reclassify broadband (and the Notice does not state what the Commission is obligated to do next), it is necessary before the FCC writes new regulations.  Public comments are due to the Commission on July 15 and reply comments (comments replying to the first round of comments) are due August 12. After the two rounds of public comments the FCC could write reclassification regulations and vote on whether to implement them. However, the FCC can abandon its reclassification effort at any time. So despite the process starting, it may not be completed. Uncertainty and political wrangling still reign supreme, but at least the ball has started rolling down hill.

To file comments, click here.

The long running battle between Tiffany’s and eBay took a new turn recently. A ruling by the 2nd U.S. Circuit Court of Appeals upheld eBay’s victory against Tiffany’s claim of trademark infringement, but sent back for reconsideration Tiffany’s claim of false advertising by eBay. The case relates to eBay’s use of the Tiffany name in its ads, which Tiffany claims are used mostly in ads for counterfeit  products. The ruling, assuming the U.S. Supreme Court does not disturb it, will make it harder for companies wanting to use trademark as a way to limit the sale of pirated goods with 3rd parties using the trademarked name in advertising.

An AP excerpt goes into further detail:

The three-judge panel said in its written ruling that it had difficulty with the lower court’s reliance in its ruling on eBay’s assertions that it did not know which listings offered counterfeit Tiffany goods. The 2nd Circuit noted that eBay advertised the goods sold through its site as Tiffany merchandise.  “The law requires us to hold eBay accountable for the words that it chose insofar as they misled or confused consumers,” the appellate panel wrote.  The company would not necessarily need to stop advertising goods such as Tiffany products if it knows some of them are counterfeit, the appeals court said.  “A disclaimer might suffice,” it said. “But the law prohibits an advertisement that implies that all of the goods offered on a defendant’s Web site are genuine when, in fact, as here, a sizable proportion of them are not.”

Court documents unsealed recently in the titanic Google-Viacom lawsuit over Youtube have uncovered a treasure trove of alleged dirt: Youtube founders writing emails detailing copyright abuses from within and Viacom’s original plans of buying Youtube:

But an e-mail exchange among YouTube co-founders Chad Hurley, Steve Chen and Jawed Karim showed there were in-house copyright abuses. “Jawed, please stop putting stolen videos on the site,” Chen wrote in the July 19, 2005, e-mail. “We’re going to have a tough time defending the fact that we’re not liable for the copyrighted material on the site because we didn’t put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it.” In a statement after the documents were unsealed, YouTube said Chen’s e-mail was referring to some aviation videos that had been making the rounds on the Web. “The exchange has nothing to do with supposed piracy of media content,” YouTube said.

You can read all the dirt here

Lindsay Lohan has recently filed a complaint against E*Trade after its “Baby Girlfriend” commercial, first aired during the Superbowl, mentioned a “milkaholic” named Lindsay. The complaint alleges that E*Trade used Lohan’s name and characteristics without her permission. In my opinion, only a self-indulgent Hollywood star would think it was referring to a specific person. But Lohan’s lawyers seem to think that this commercial is “causing and threaten[s] to cause immediate and irreparable damage to the plaintiff.” Lindsay and her attorneys are asking for an injunction as well at both $50 million in compensatory damages and $50 million in exemplary damages.

The Americans with Disabilities Act prohibits state and local governments and other “places of public accommodation” from discriminating against individuals with disabilities.   Under the ADA, a place of public accommodation “shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.”

The ADA does not specify what is meant by a “place” of public accommodation.  A case is now pending, Stern v Sony, which will determine whether an online gaming forum would constitute a a place of public accommodation. In 1996, the DOJ’s Civil Rights office stated that the provisions of the ADA should apply to Internet websites. But federal courts are split on this issue. In 1994, in Carpats Distribution Center v. Automotive Wholesalers Ass’n of New England, the court decided that a public accommodation includes areas more than physical structures. Dicta in a 1999 case, Doe v. Mutual of Omaha Insurance Company, also suggested that electronic websites could be considered in public facilities.

However, other courts have stated that the ADA was intended to apply only to an actual physical location. For example, the court in Ford v. Schering-Plough Corporation did not allow the ADA to be extended to an insurance policy as it should only apply to actual physical places.

Today we examine one of the various ways that content producers can protect themselves during the content production stage from piracy.

One key component is that only a limited number of employees should have access to the products in development. This should not aim to limit collaborative design work; instead it should ensure that only the people needed on the project are involved in the development chain. Too often leaks occur because someone outside the necessary development chain spreads the products to unauthorized users. This occurred during the development of Doom 3 when a non ID Software employee at a graphics card company pirated a pre-release version of the game. The game which had been worked under a fairly large veil of secrecy now became available for both consumers and competitors to try out. The key lesson is to ensure that your internal team is kept to a minimum needed for development and innovation, but also remains manageable. A manageable team helps make content easier to keep track of and protect from being stolen or leaked. Accidental leaks have led to the pirating of many products. A recent example was the downloadable content for the game Dragon Age Origins entitled “Return to Ostagar” was accidentally left on a file server accessible to the public. This led to the product being pirated while the retail version was still being tested (because of a last second software bug that was discovered) and the loss of a large amount of potential revenue. Harsh lessons such as the two examples above demonstrate the need for smaller more manageable teams in content production, balanced with the design and innovation needs

One of the biggest problems being faced by all parts of the entertainment industry is the leaking of their products before release date.  It seems more of a miracle these days when a product can actually be released on street date and not suffer from an earlier “pirate release.” The question is how can developers secure their products from a pirated release before an actual street date release? We will look at some of the various strategies available to content producers over the next couple of entries and we will look at protections available during content production, manufacturing, and finally shipping of the product. What steps can be taken during these various stages to protect the intellectual property of content developers? We will look at this very question in our next three entries.

A new documentary entitled Copyright Criminals is premiering at film festivals and on PBS that asks what is the difference between a sample and infringement, if any.

Is sampling and scratching theft or merely traditional cultural appropriation? That’s the central question of the new documentary Copyright Criminals, premiering Tuesday at the Toronto Film Festival as well as on PBS’ Independent Lens series.

When Public Enemy’s legendary 1988 release It Takes a Nation of Millions to Hold Us Back and De La Soul’s epochal 1989 effort 3 Feet High and Rising exploded the possibilities of sample-based sound collage, no one had a clue that hip-hop would become a multibillion-dollar global industry and spark lasting, devastating copyfights.

Were those copyfights legitimate, or simply ruthless attempts to cash in on a zeitgeist that knows no limit? Benjamin Franzen’s Copyright Criminals explores the subject through in-depth interviews with hip-hop’s finest talents, from De La Soul and Public Enemy to DJ Spooky, Jeff Chang, El-P, Mix Master Mike and many more.

The documentary makers even tracked down Clyde Stubblefield — James Brown’s original funky drummer, whose beats have been extensively borrowed to form the backbone of many hip-hop songs. Stubblefield says he has yet to see a dime from all the sampling, as he explains in the Copyright Criminals trailer.

Read More at http://www.wired.com/underwire/2010/01/copyright-criminals/#ixzz0d7ceSYQN

Copyright Criminals – Trailer from IndiePix on Vimeo.