Whether to repeal or maintain consent decrees loomed large in the second round of music licensing comments filed to the Copyright Office last week (http://1.usa.gov/1tIPlqs). Early copies of the comments, due Friday, were provided by broadcasters and artist attorneys and advocates. Music attorneys foresaw the eventual elimination of Copyright Act Section 115 in favor of direct deals, but the Future of Music Coalition (FMC) doubted whether such deals would be helpful to artists.
Section 230
The FCC voted 3-2 Thursday to explore the potential of Internet fast lanes, as expected (CD May 15 p1). But Chairman Tom Wheeler wanted to make one point clear: Fast lanes for some will not mean slow lanes for others. “I don’t like the idea that the Internet could become divided into haves and have nots,” he said. “I will work to see that does not happen.” Wheeler said he wants rules in which, if an ISP slows speeds below what the consumer bought, “it would be commercially unreasonable and therefore prohibited.” Republican commissioners said net neutrality rules are a government solution in search of a problem.
"Like Godzilla, who arrives and destroys great human accomplishments,” some state and federal bills and laws are threatening the Internet’s future success, said NetChoice in a Thursday release on its annual list of the worst Internet laws. California’s SB 568 law, the federal e-commerce sales tax bill and numerous state-level digital descendant bills were on NetChoice’s most-destructive list at http://netchoice.org/iawful. NetChoice said California’s SB 568 law is particularly egregious, saying it violates federal law and the First Amendment. The law, which takes effect January 2015, is intended to make two major changes. First, websites and apps “directed” to minors will have to provide the option to registered minors to delete any publicly posted content. Second, those websites may no longer advertise items that minors legally cannot purchase. All other websites will have to take “reasonable actions in good faith” to avoid presenting ads for these restricted items to known minors. “This makes for a discriminatory law,” the report said. Section 230 of the federal Communications Decency Act protects websites from liability for content or commerce posted by users, according to the report. “Sites we use everyday could not exist without it,” said NetChoice Executive Director Steve DelBianco. By making these sites liable, the state law not only violates federal law, but also “violates the First Amendment by chilling advertisers’ free speech,” the report said. “SB 568 represents a major threat to the use of the Internet and snubs the federal protections that allowed e-commerce to flourish."
The Communications and Technology Task Force unanimously approved a resolution to oppose intermediary liability for Internet providers under the Communications Decency Act. The resolution was in response to a National Association of Attorneys General letter asking Congress to change Section 230 of the CDA to open Internet providers to possible liability, said John Stephenson, task force director. The resolution next goes to the American Legislative Exchange Council board. The task force plans to discuss interconnection agreements more in the upcoming months through presentations and panel discussions, said Stephenson in an interview. The resolution was approved at last week’s ALEC conference in Chicago.
A federal judge granted a preliminary injunction against a recently passed New Jersey law, which would hold online platforms and ISPs liable for content their users post, according to a release (http://bit.ly/16bebaC) from the Electronic Frontier Foundation (EFF), which argued against the law in court on behalf of the Internet Archive. District Judge Dennis Cavanaugh in Newark found that a law aimed at curbing child sex trafficking -- including via the Internet -- creates liability for online platforms and ISPs, contradicting protections established by Section 230 of the Communications Decency Act (CDA), EFF Senior Staff Attorney Matt Zimmerman told us. The court hasn’t yet issued a written report.
There are overlapping Internet policy goals of Amazon and The Washington Post, soon to share a common investor in the former’s CEO Jeff Bezos, who agreed to buy the newspaper and related assets Monday for $250 million. Though Bezos is buying the paper with his own money and has said he will mainly leave the editorial operations to the experts (CD Aug 7 p4), the policy debates on efforts to reform the Communications Decency Act (CDA) and to pass online sales tax legislation are of interest to both the online retailer and the paper, industry experts told us.
The American Legislative Exchange Council will look at draft model legislation restricting warrantless cellphone tracking, following similar laws enacted in Maine and Montana (CD July 15 p7), at ALEC’s annual meeting in Chicago Aug. 7-9. The 40-year-old organization, which brings together state legislators and industry, will also consider revising past model legislation, propose a draft resolution objecting to certain potential Communications Decency Act (CDA) amendments and a statement of principles for cybersecurity. The group has attracted fierce criticism from such groups as Free Press (CD April 9 p11), but it remains committed to transparent policy discussions, its task force leaders told us.
Arlington v. FCC did not hold that an agency is always entitled to deference in its interpretation of the statutes it relies on, Verizon told the U.S. Court of Appeals for the D.C. Circuit in a filing Monday. Verizon was responding to an FCC argument that Arlington bolstered its arguments in the court challenge to the net neutrality rules (CD May 24 p1). The Arlington decision, Verizon said, simply held that under the established Chevron framework, deference only applies when it resolves “'a statutory ambiguity’ that constitutes an implicit delegation to gap-fill.” And according to D.C. Circuit precedent, whether ambiguity exists is not a question that agencies get deference on, Verizon said. Congress declined to grant specific authority over the Internet, instead creating a distinct regulatory scheme for information services and expressly directing that the Internet remain “unfettered” by regulation, Verizon said, quoting Section 230 of the Telecom Act. “There is no gap to fill."
Monday’s Supreme Court decision that the FCC is entitled to deference in interpreting ambiguous statutes about its jurisdiction (CD May 21 p1) bolsters the commission’s position in the net neutrality court battle, the FCC said in a letter filed with the U.S. Court of Appeals for the D.C. Circuit Thursday. Attorneys and law professors we spoke to agree that the decision in the case, Arlington v. FCC, could help the commission -- but only if the court thinks the statutes in question are ambiguous in the first place. A Verizon spokesman said the company will file a response with the D.C. Circuit.
A New Jersey woman claiming that Apple failed to stop third-party applications from uploading users’ personal and device information without permission will get a second bite at Apple. U.S. District Judge Yvonne Gonzalez Rogers in Oakland, Calif., granted Apple’s motion to dismiss the lawsuit seeking class-action status while also granting Maria Pirozzi leave to amend her claims. The suit faults Apple for allegedly not enforcing its terms of service for app developers, letting developers upload “private address book information (including names and contact information of users’ contacts), location data, private photographs and videos without the users’ knowledge or consent when a user agrees to allow an app to access the user’s then current locations.” The Path app, for example, was caught uploading address book and calendar data without user consent in February, the suit said. Pirozzi claimed she was “induced” to buy an unidentified Apple device in September 2011, and download paid apps to it, based on Apple’s terms and promises regarding app consent rules, Rogers said. But it’s not clear from Pirozzi’s complaint whether any apps “actually uploaded” her information, the judge said (http://xrl.us/bn8b2j). “Overpaying for goods or purchasing goods a person otherwise would not have purchased based upon alleged misrepresentations by the manufacturer would satisfy the injury-in-fact and causation requirements” for standing to sue, but because Pirozzi didn’t “allege specifically which statements she found material to her decision to purchase” the device or any apps, she hasn’t suffered injury-in-fact through Apple’s alleged conduct, Rogers said. Pirozzi similarly didn’t allege that an app “actually misappropriated” her information, only that it was at “greater risk” of misappropriation through Apple’s negligence, the judge said. The plaintiff will have to provide specifics, including what harm she suffered from unauthorized tracking and whether Apple even received her information and thus profited from it, to show her standing, Rogers said, giving Pirozzi leave to amend her claims. Rogers also pooh-poohed Apple’s reliance on Section 230 of the Communications Decency Act (CDA) as a shield for Pirozzi’s claims. Apple said it can’t be held responsible for exercising editorial discretion over which apps it approves and distributes through the App Store. But Pirozzi didn’t “solely” fault Apple for choosing which apps to distribute -- rather she wants to hold it liable for its own representations as an “information content provider,” Rogers said: The record is too “scant” to decide whether Apple is shielded by the CDA. The judge gave Pirozzi until Jan. 22 to file an amended complaint.