According to Steve Gibson, CEO of Righthaven, Copyrights are the biggest assets in the world of journalism. So he’s buying them, then suing anyone who re-hosts the articles on their blog or website. His business model essentially is to use the threat of statutory damages, up to $150,000 per willful infringement, to force bloggers and other online sites to settle for a fraction. A Google search for Gibson’s company reveals a torrent of litigation against various entities, ranging from marijuana legalization group NORML to the conservative blog Free Republic, though there doesn’t seem to be a website for the group as of yet.

This strategy echoes that of U.S. Copyright Group, a coalition of independent movie producers to enforce their P2P lawsuit claims, though the infringements vary significantly. For Righthaven, they are targeting the wholesale plagiarism of online news content from for-profit media outlets. According to Gibson in an article from Wired Magazine, there are, “millions, if not billions, of infringements out there”. While going after publishers who re-post content is a valid claim for a right holder to pursue (especially if the blog is making money off content they did not create), using the Copyright Act to intimidate those who utilize RSS feeds or other forms of linking is more dubious. Mediapost.com ran a story in March pointing out Rightshaven is suing without even following the §512(c)(3) DMCA take down procedures, simply making its demand to settle or go to Court. This is likely a cost-saving measure designed to avoid spending more in legal fees than it makes in settlements, unlike the RIAA.

The issue here arises in light of cases such as Arriba Soft, Perfect 10, and the recent Google-Viacom dispute: at what point does using content published somewhere else infringe on those rights, and what is sufficient to avoid liability? Arribasoft and Perfect 10 both stand for the prospect that deep linking, where content from one site is displayed as a link on another, is protected Fair Use. Specifically, the Court in both cases relied on the highly transformative nature of the link combined with the relatively marginal market harm caused by the linking. Google recently had a summary judgment granted in its favor in a case brought by Viacom over content on YouTube, where DMCA take down procedures weighed heavily in a finding that Google did not infringe on Viacom’s Copyrights. So, in these cases, where a blogger merely links to a case should be distinguished from one who copy-pastes content from another site without proper quotations or citations. It is unclear if this distinction is part of Righthaven’s plan.

So, is Righthaven merely being brazen in their approach, or just economic? Practices such as this are an effective way of enforcing rights online when done right (by respecting the various rights and defenses available to using other people’s content). When not done right, it makes for good litigation. However, in the context here, the combination of a deep pocked and strong philosophical conviction makes decreases the odds of anyone mounting any serious defense in Court.

Two years ago, the entertainment industry drafted colleges and universities into its ongoing war on piracy. Now it’s time for them to go to battle. As the AP reports, a provision of the Higher Education Opportunity Act of 2008 (PDF) will go into effect this month that will force institutes of higher education to police their Internet networks for piracy. If a college or university fails to implement “at least one ‘technology based deterrent,’” such as blocking file transfers, traffic shaping, or preventing access to peer-to-peer file transfer sites, then it risks losing its access to federal student financial aid.

Both the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) vigorously lobbied for this provision.  In most circumstances, it will not lead to increased enforcement, as most colleges and universities already employ these anti-piracy methods as well as respond quickly to “takedown notices” sent by copyright holders. The content industry hopes that this new requirement, along with other rules and regulations, will gradually change the way people think about piracy and lead to more people downloading files legally.

The White House moved to protect what they call an “Identity Ecosystem” through a new cybersecurity initiative. On June 25th, a post on the White House blog called The National Strategy for Trusted Identities in Cyberspace proposed a system developed jointly by the government and private enterprise to simplify the management of online identities. The goal would be to have users’ online reputations vetted by a participating vendor, “vouching” for them across the Internet. For example, if a user is verified through Google or Facebook, she could simply use her login to simplify an Amazon or eBay purchase.

The idea is hardly new. OpenID has been working towards a similar goal for some time, partnering with some of the biggest names on the Internet. Google, Yahoo, Verisign, and WordPress all have incorporated the OpenID interface into their systems, giving users the option to use it along side or in place of their local logins. The Open ID website even has a page welcoming the government, linking to the the draft memo for the government’s program. The primary goals of both systems are being easy to use, cost-efficient, voluntary, and secure. The potential applications for the system include digital transactions, social media conformity, and allowing “anonymous” blogging.

The plan is not without its critics. The Department of Homeland Security set up a website allowing for user-rated commenting on the proposal; the top 5 all present compelling arguments against the system. The DHS comments focus more on the natural risk of centralizing users’ personal information and better informing the public on how to protect their information. However, there has been somewhat less discussion on how a system a system designed to verify one’s identity would preserve anonymity. But, as a few tech blogs have pointed out, it doesn’t. It merely shortens the subpoena’s trip from complainant to records custodian while facially preserving anonymity to the casual reader. But given the public’s indifference towards sharing their identity by using their Facebook accounts to log-in to various sites across the Internet, is it likely to be a concern?

District Court Judge Louis Stanton granted Google’s motion for summary judgment in Viacom’s lawsuit alleging direct and secondary infringement. The case has generated significant publicity since it was filed three years ago, with both sides airing dirty laundry in their pleadings, along with putting $1 billion in damages and the future of online business models at stake. If Viacom wins, the balance of power would shift to owners of online content, putting the liability squarely on user-sourced online distribution sites, like YouTube, to police themselves. However, Google’s victory does not equate to opening the flood gates to unlicensed online distribution. It merely means that when sites like YouTube provide a digital rights enforcement mechanism to content owners, they can’t be held liable for the infringing acts of their users.

The central issue was whether knowledge of infringing activity should be construed narrowly when applying the DMCA Safe Harbor Provisions. A broad interpretation of “knowledge” would render YouTube liable for operating a system with awareness that infringements were commonplace, without requiring knowledge (actual or constructive) of specific infringements. In other words, it would require YouTube to self-police the rights of content owners instead of operating solely through the flag-and-take-down system it currently operates.

In granting the motion, the court adopted a narrow approach to the knowledge requirement, requiring sites like YouTube to have “actual or constructive knowledge of specific and identifiable infringements of identifiable items”. Judge Stanton deferrred to YouTube’s take-down system, referencing their assignment of a designated agent to handle requests and an instance where Google removed over 100,000 videos flagged by Viacom within one business day. Another important factor was YouTube’s employment of “Audible Magic“, a content-fingerprinting tool that assisted both rights holders and YouTube in identifying potentially infringing content.

As the case stands now, legitimate, user-sourced online distribution systems retain a significant shelter from liability while content owners must still shoulder the burden for enforcing their rights across the digital landscape. We will get insight into the future of this litigation on July 14th, when the parties must submit their report on any remaining issues in the case.

Proponents of an increased government role in broadband regulation will surely use the Organization for Economic Cooperation and Development’s (OECD) recently released data on Internet penetration, speeds and usage to bludgeon their opponents. It’s becoming an unsettling trend: the U.S. continues to lag behind parts of Europe and Asia in terms of broadband speeds and penetration in proportion to the population. However, the U.S. still ranks number one in overall broadband users.

As Bloomberg Businessweek reports, FCC Chairman Julius Genachowski argues that because the U.S. is falling behind in broadband penetration and speed, the Commission and Congress must enact the National Broadband Plan. While opponents of increased government regulation argue that either the OECD’s numbers are faulty or less regulation is needed to spur broadband investment and expansion. All in all, it’s just another interesting wrinkle in the debate over broadband regulation.

This past April, the Court of Appeals for the D.C Circuit decided Comcast v. FCC, holding that the government could not regulate network management practices of Internet Service Providers (ISPs). The court vacated an FCC order prohibiting Comcast from “throttling”, or slowing down traffic for P2P users. The decision threw a wrench in the FCC’s plans for net neutrality and national broadband, putting ISP’s networks beyond the “ancillary control needed to make their implementation possible.

Since then, there have been calls to reclassify ISPs as “common carriers”, sparking debate in Congress. Most recently, a group of 171 House Republicans sent a letter to FCC Chairman Julius Genachowski urging him not to move forward with this plan, while four Senate Democrats have sent a letter encouraging him to press on.  Reclassifying ISPs as common carriers would bring them under the same control as cable service and telephone service providers. The government would gain significant more control over their practice, including price schedules and how information flows through their networks. For example, 47 U.S.C. Sec.553(f)(2) “ensure[s] that no cable operator or group of cable operators can unfairly impede…the flow of video programming from the video programmer to the consumer”. In plain language, it means that the cable operator(s) must treat all information that flows through their fibers equally.

The implications for ISPs are not hard to imagine. If ISPs became common carriers, traffic from a website such as Google cannot be hampered (such as by the throttling at issue in Comcast). It would reinforce the idea of the Internet being a “dumb” network, meaning that information is not manipulated between server and client, even as technology designed to do the opposite becomes more prevalent. On the other hand, if ISPs continue to evade reclassification, they will remain free to prioritize the information on their networks as they see fit, improving performance for consumers at the expense of so-called “bandwidth hogs“.

Battle lines are drawn and Congress is girding for war. Almost all House Republicans signed a letter to FCC Chairman Julius Genachowski asking him to wait for instructions from Congress, instead of changing broadband’s current classification from an “information service” to a “telecommunications service.” However, across the battlefield are the chairmen of the committees with oversight responsibility over the FCC: Senator Jay Rockefeller (D-WV), Chairman of the Senate Commerce Committee, and Representative Henry Waxman (D-CA), Chairman of the House Energy and Commerce Committee. Senator Rockefeller and Rep. Waxman sent a letter to Chairmen Genachowski supporting the FCC’s reclassification plan and announcing that Congress will work to amend the Communications Act (the “Act”) to accommodate the modern telecommunications industry.

The FCC chose to reclassify broadband after the U.S. Court of Appeals for the D.C. Circuit ruled that the FCC’s “ancillary authority,” derived from Title I of the Act, does not allow it to rebuke Comcast for interfering with peer-to-peer file transfers or to regulate Internet Service Providers’ network management practices. By reclassifying broadband as a “telecommunications service,” under Title II of the Act, the FCC hopes place its regulation of broadband on solid legal footing. If the FCC fails to reclassify broadband, or if Congress fails to grant the FCC specific authority over broadband, then much of the National Broadband Plan as well as the U.S.’ ability to regulate broadband will be jeopardized.

So what’s next? As stated in Chairmen Rockefeller and Waxman’s letter, Congress is starting the process for amending the Communications Act. However as with any legislation, any amendments to the Act may take years to pass. In the mean time, the FCC is going ahead with its plan to reclassify broadband by voting to open the reclassification proceeding in its June meeting.  As the FCC moves ahead, neither side seems to be letting up since the future of U.S. communications policy hangs in the balance.

According to PC Mag Online:

Microsoft and Amazon on Monday signed a cross-license agreement under which both companies will have access to each other’s patent portfolio. The deal covers a “broad range” of products, including Amazon’s Kindle and Amazon’s use of Linux-based servers. Exact terms of the deal were not released, but it was revealed that Amazon will pay Microsoft for the access.

The article goes on to state that the goal of agreements like these is to help prevent costly patent litigation down the road.

The full article can be read here.

Professor John Reece Roth of the University of Tennessee was sentenced to 48 months in prison for violating the Arms Export Control Act. According to the indictment, Roth conspired with Atmospheric Glow Technologies (AGT) to illegally export and did export technical information relating to Air Force research to the People’s Republic of China. AGT had contracts with the US Air Force to conduct research and they hired Roth to help them.

Roth exported technical information known as “Technical Data” that related to his illegal disclosure and transport of restricted military information associated with the Air Force that related to developing plasma technology for an air vehicle (a drone). The illegal exports involved specific information about the drones that had been designed and was being tested for use as weapons or surveillance.

The Arms Export Control Act prohibits exporting defense related material to a foreign country. The exports included in this prohibition are “deemed exports” which are described as the unauthorized release of technology to a foreign national either domestically or overseas. A foreign national is defined in 8 USC 1324(b)(a)(3).

In this case, the government stated that Roth did not have permission to take the research to China. Furthermore, Roth lied to the Defense Department in regards to his employment of Chinese foreign nationals. His two graduate research assistants were given unrestricted access to information regarding the drone developments.

The jury found that Roth violated the export rules when he assigned Chinese nationals to work on the research project without clearing that with the State Department. Violation of the Act requires willful conduct and intent. Roth was advised by an officer at the University of Tennessee not to disclose the information and thus the jury found that Roth knew what he was doing and did so anyway.

Roth argued that he thought his researched qualified for exclusion under the fundamental research exception.

Senators Jay Rockefeller (D-WV) and Olympia Snowe (R-ME) introduced the Cybersecurity Act of 2009. This bill sought to give the federal government unprecedented power over the Internet. In April there were various concerns voiced about an earlier version of the bill, including the power it would give the President.

The original bill, as well as the new version, give the President carte blanche to decide which networks will be considered “critical infrastructure information systems or networks.” The circumstances under which the President could shut down a certain network remains quite unclear. For example the original bill stated that “The President [...] may order the disconnection of any Federal Government or United States critical infrastructure information systems or networks in the interest of national security;” whereas the new bill states that “The President [...] in the event of an immediate threat [...] may declare a cybersecurity emergency; and may, if the President finds it necessary for the national defense and security, and in coordination with relevant industry sectors, direct the national response to the cyber threat and the timely restoration of the affected critical infrastructure information system or network;” (emphasis added).

Declan McCullagh, in a CNET article, addresses how the bill would give the President emergency control over the internet. McCullagh specifically addresses the vague language about networks, the unexplained scheme to certify security professionals as well as various other “cybersecurity strategies.”