Archive for April 2010

FCC and the Internet: Edit->Undo?

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The D.C. Circuit Court of Appeals recently held that the FCC was not authorized to prohibit Comcast from interfering with P2P networking applications, erecting what appears to be a large roadblock on the FCC’s path to net neutrality. The court held that the FCC’s ancillary authority under Section 4(i) of the Communications Act of 1934 did not extend it sufficient power to regulate broadband services absent explicit statutory goals.

The FCC had largely tied its own hands in the case: its designation of broadband as an ‘information service’ under the Bush administration was granted Chevron deference by the Supreme Court in the 2005 Brand X case, leaving it unregulated in an effort to promote investment. The agency simply adopted four principles of net freedom that they expected broadband companies to abide by and went home for dinner. However, with competition in broadband access arguably dwindling rather than burgeoning, public interest groups like the Open Internet Coalition are seeking increased regulation to protect consumer choice, and the FCC wants to lead the way.

As it turns out, the Comcast ruling may not be the big obstacle it first appears to be. The Brand X majority openly accepted the FCC interpretation over the Ninth Circuit’s version, stating that only judicial precedent holding a statute unambiguous can displace agency construction. In a dissent, Justice Scalia argued that the Court was ceding far too much by allowing the FCC to define ambiguous statutory terms and then flip its definition to suit its fancy in future disputes, a fear the majority seemingly shrugged off.  Here is a hypothetical presented by Justice Scalia in his Brand X dissent:

Imagine the following sequence of events: FCC action is challenged as ultra vires under the governing statute; the litigation reaches all the way to the Supreme Court of the United States. The Solicitor General sets forth the FCC’s official position (approved by the Commission) regarding interpretation of the statute. Applying Mead, however, the Court denies the agency position Chevron deference, finds that the best interpretation of the statute contradicts the agency’s position, and holds the challenged agency action unlawful. The agency promptly conducts a rulemaking, and adopts a rule that comports with its earlier position–in effect disagreeing with the Supreme Court concerning the best interpretation of the statute. According to today’s opinion, the agency is thereupon free to take the action that the Supreme Court found unlawful. 545 U.S. 967, 1016.

The FCC would appear, at least from Justice Scalia’s viewpoint, to have a semantic out. Michigan Law Professor Susan Crawford argues that the agency should simply relabel high-speed internet services as ‘telecommunications services’, which are subject to regulation under Title II of the Communications Act. Simple enough, no? Not according to one blogger, who analyzes the proposed methodology and concludes that it would open a Pandora’s Box. In fact, Crawford herself recognized difficulty with this strategy in a 2006 article for Berkeley Tech Law Journal:

Congress should act to cabin and explicate the scope of the Commission’s authority to regulate the internet. The difficult and important question of how to govern the internet should be answered explicitly rather than through formalistic re-characterization of internet services by an independent agency. 21 Berkeley Tech. L.J. 873, 931.

In contradicting her recent Op-Ed piece, she highlights an alternative route the FCC can take: ask Congress to redevelop FCC authority and provide more logical regulatory boundaries in light of the dramatic advances in communications technology over the past several decades. Congressional action would add legitimacy to the process and allow for the formation of a structural foundation that represents the importance of internet functionality in the modern age. In the meantime, the National Broadband Plan is moving forward and the FCC plans to launch more than 60 proceedings within the year, authorized or otherwise.

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April 26th, 2010 at 1:30 am

Copyright and Religion

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If Jesus told you to sue for copyright infringement to protect the purity of your religion, would you?  At least one person has answered “yes.”  If someone stole your “secret” religious text and criticized it on the internet, would you sue them for copyright infringement?  Scientologists certainly have.  These are not isolated incidents: different religious organizations are bringing claims of copyright infringement.  In one sense, there’s nothing extraordinary about these lawsuits—after all, religious organizations are entitled to use the protections of the law just like any other individual or entity.  But in another sense, there’s something unique about these lawsuits: the religious organizations’ motivations for suing aren’t typically economic.

My Article, In Search of (Maintaining) The Truth: The Use of Copyright Law by Religious Organizations, explains why and in what context religious organizations sue others who use their religious works.  It shows that religious organizations frequently sue for copyright infringement to further their own religious goals, such as preventing negative publicity and squelching dissent or criticism.  The Article argues that these motivations (and others explained in the Article) are antithetical to copyright law’s underlying purpose.  It also demonstrates that current copyright doctrines stifle, rather than facilitate, religious claims.  The conclusion reached from this analysis should not be surprising: religious organizations should not use copyright law to achieve their religious objectives.

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April 21st, 2010 at 2:34 pm

Victims of the Justice System are Still Victims — Errors in Forensic Testing Must be Corrected

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In May 2008, Walter Swift was exonerated after serving 26 years in prison for a rape he did not commit.  Mr. Swift’s case, like many where an innocent person is convicted, didn’t have just a single error.  One problem was with the identification that not even the investigating detective believed.  Another problem was that forensic evidence that should have cleared Mr. Swift was withheld.

Before DNA became the standard forensic test for identifying the source of bodily fluids at crime scenes, forensic analysts tested for blood type antigens.  Depending on the antigens detected, the source of the bodily fluid could be identified as type A, B, AB, or O.  If the test failed to show the presence of any antigens, the bodily fluid would be identified as coming from a “non-secretor” to denote an individual who doesn’t secrete enough antigens to be detected by the forensic test.  Approximately 20% of the population is found to be “non-secretors.”  (For more details on this testing procedure, see Kathleen E. Boorman et al, Blood Group Serology (1988); Ivor Dunsford & Christopher Bowley, Techniques in Blood Grouping (1967); David Harley, Medico-Legal Blood Group Determination (1944); Leon N. Sussman, Blood Grouping Tests (1968).)

Although Mr. Swift’s blood type did not match the blood type found in fluids at the scene, he was tested by forensic analysts and found to be a non-secretor.  (It was withheld that prior testing found that Mr. Swift WAS a secretor, and therefore he could not be a match for the bodily fluids found at the scene.)  Mr. Swift’s purported non-secretor status allowed the prosecution to explain the absence of Mr. Swift’s antigens in the bodily fluids found at the crime scene.  Recent retesting of Mr. Swift found that he was in fact a secretor, and because this meant Mr. Swift could not have left the bodily fluids found at the scene, the court vacated his conviction.

I recently had the pleasure of speaking with Mr. Swift about his case.  While in prison Mr. Swift was required to attend group counseling.  During the course of this counseling, the inmates talked about their cases and Mr. Swift was startled to learn that 11 out of 15 (73%) members of the group were convicted as non-secretors!  It is worth noting that while secretor status is genetically controlled, without laboratory testing an individual would have no way of knowing or acting based on their secretor status.  Given this fact, the variation between the percentages of non-secretors in this group (73%) from the population (20%) is startling.  This variation can this be explained by both inadvertent mistakes and intentional malfeasance in the testing,  but regardless of the source of the error, this variation suggests a problem with the forensic science used against accused rapists (among others) in Michigan.

It is worth noting that Mr. Swift is not the only individual where recent retesting has proven that an individual convicted as a non-secretor is in fact a secretor.  After spending 23 years in prison, recent retesting has proven that Karl Vinson is a secretor, contrary to the testing showing him to be a non-secretor that was used to secure his conviction.  A motion to set aside Mr. Vinson’s conviction is currently pending in Wayne County Circuit Court.  Mr. Swift and Mr. Vinson are both notable for never giving up the search for justice.  How many others were not so persistent and remain in prison for crimes they did not commit?

When errors were identified from the Detroit Police Department Firearms Lab, District Attorney Kym Worthy started an immediate audit of trial convictions and guilty pleas that relied upon the crime lab’s findings.  The same must now be done for those convicted as “non-secretors” within the state of Michigan.  The prosecutors fought hard in search of justice for the victims of street crimes, and it is time for them to search for justice for those who have been victimized by the justice system itself.

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April 10th, 2010 at 10:25 pm

Posted in Cases,Commentary

State and Federal Robocall Laws

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My note, Regulating Robocalls: Are Automated Calls the Sound of, or a Threat to, Democracy? discusses the federal and state laws that limit the use of automated political phone calls. Robocalls are a popular campaign tool because of how cheap they are, with vendors like Winning charging pennies per call to reach lists of thousands of voters. Because political calls are exempt from the federal Do Not Call Registry, many people who otherwise avoid phone solicitations receive unwanted political robocalls. This has caused some people to turn to a private do-not-robocall list and motivated states to pass a patchwork of laws:

State Map

This state-based approach has created a problem: conflicting laws that national campaigns have trouble navigating. This problem motivated one national political group to request an advisory letter from the Federal Elections Commission declaring that federal law preempts these state laws—despite a specific anti-preemption clause in the federal telecom laws—but that request was later withdrawn. My proposal calls for a new federal law to regulate the worst robocalls and preempt the confusing patchwork of state laws. Unless Congress acts, we can expect that the 2010 election will bring even more stories that feature shady calls going unpunished and mainstream campaigns being threatened for unwittingly violating the law.

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April 8th, 2010 at 3:33 pm

Posted in Commentary

The Performance Rights Act — The Future of Radio?

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Ask the average American how much an artist receives when his or her music is played on the radio, and most will suggest that the musicians earn a penny or two per play.  And if we’re talking about online radio, they would be right.  But in the context of terrestrial AM/FM radio the answer is, in reality, zero.  On February 4, 2009, the Performance Rights Act was introduced in the House and Senate which would require terrestrial stations to pay artists and musicians for the first time.  The proposed Act raises several issues:  why is the right being sought now, and why have copyright owners shifted reform focus from digital to terrestrial music outlets?

My article, The Super Brawl:  The History and Future of the Sound Recording Performance Right, explores these and other considerations in the upcoming issue of MTTLR.  The paper ultimately suggests that in addition to the Performance Rights Act, sound recording copyright holders should seek to expand their digital performance right online to encompass user-generated audiovisual works on sites like YouTube, Facebook, and Myspace.  In consideration for an annual blanket fee, these performance-based sites would be secure against DMCA notice-and-takedown proceedings and infringement actions from participating sound recording copyright owners. Such a compromise would permit sound recording copyright holders to receive just compensation for their works performed online, save sites like YouTube millions in administrative and legal fees, and permit users to freely and fairly post sound recordings online.

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April 1st, 2010 at 10:03 pm

Posted in Commentary