ArtsWatch: Net Neutrality Neutered 2.0

Federal ruling sends FCC back to the open Internet drawing board, again
January 20, 2014 -- 9:49 am PST
By Philip Merrill /

In recent news ...

It's FCC Chair Wheeler's Serve In New Round Of Net Neutrality Debate
On Jan. 14 the U.S. Court of Appeals for the D.C. Circuit struck down Federal Communications Commission open Internet regulations that prohibited Internet service providers who operate broadband networks from discriminating against or blocking other ISPs' transmissions. The FCC's jurisdiction and ability to require disclosure were upheld, but the ruling struck down its regulations' anti-discrimination and anti-blocking requirements. The judges found that the FCC had failed to overcome an appearance of being inconsistent because it exempted ISPs from classification as common carriers but then seemingly imposed common-carrier obligations on them. Reminiscent of reactions when the same court neutered FCC regulatory authority over the Internet in 2010, advocates of regulation were dismayed and opponents expressed satisfaction. Consumer advocates Free Press and Public Knowledge expressed their disappointment and Sen. Edward Markey (D-Mass.) pledged to introduce a bill solidifying the FCC's Net neutrality enforcement ability. On the anti-regulatory side, Republican lawmakers praising the court's decision as a victory for innovation included Sen. John McCain (R-Ariz.) and Reps. Marsha Blackburn (R-Tenn.), Fred Upton (R-Mich.), and Greg Walden (R-Ore.). The next step rests with FCC Chairman Tom Wheeler. An interesting result of this prolonged litigation is that a broad consensus developed over the years that something along the lines of anti-discrimination and anti-blocking rules is basic to how the Internet should work and to its success. Wheeler said, "The open Internet principles ... are very significant in offering assurance that the Internet will remain open and free, something on which the welfare of our society has come to depend for a remarkably broad range of economic, social, cultural, political, and other activities." Whether Wheeler appeals the ruling, creates a new procedural approach or calls on Congress to pass new legislation, he has pledged the FCC will exercise its authority if "dominant network firms ... diminish the value of the Internet."

Supreme Court To Hear Appeal Against Aereo Ruling
The U.S. Supreme Court announced on Jan. 10 that it will hear an appeal from broadcasters against the antenna-based Internet-TV service Aereo. The case stems from an April 2013 ruling by the Second Circuit Court of Appeals upholding a Southern District of New York's U.S. District Court decision from July 2012 that denied a motion for preliminary injunction against the service. Broadcasters had wanted Aereo shut down in advance of trial because they thought they had a slam-dunk case that the service was infringing. That motion was denied and Aereo has since raised fresh investment to expand to more states. Meanwhile, additional lawsuits have been filed against Aereo, and in the lawsuit that led to this Supreme Court review, the New York District Court has placed other motions on hold. Both sides, broadcasters and Aereo, welcomed the Supreme Court's consideration of the broadcasters' arguments. For Aereo, this is the risk they chose to take by designing a business model carefully crafted to resemble fair-use private copying of broadcasts, an innovative way to try to circumvent copyright law. A ruling is anticipated by summer.

Congressional Copyright Hearing Kept Disagreements Harmonious
On Jan. 14 the House Judiciary Committee's Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on "The Scope of Copyright Protection," continuing the subcommittee's extensive review of current copyright law and its potential modernization. Leading legal authority David Nimmer took a fresh look at the "making available" right of distribution. Tulane University Law School professor Glynn Lunney provided the contrasting tech-friendly view that a strict copyright approach can create pitfalls. In spite of their different perspectives, Nimmer and Lunney agreed on several specifics, such as effective small changes that could be made to copyright's statutory language and the potential benefits of implementing a small-claims court to handle consumer copyright infringement. A different set of opposing views were represented by American National Standards Institute Vice President and General Counsel Patricia Griffin and Public.Resource.Org President Carl Malamud on the issue of private sector industry standards being incorporated by reference into public laws. Griffin defended protecting standards by copyright and charging reasonable fees for them, complaining about Malamud's practice of making documents extensively available for free online without a license. Although several subcommittee members sympathized with the general principle that public laws should be available without cost, Griffin argued that reasonable fees underwrite the expenses inherent to standards development. Other topics covered included the protection of broadcast signals, statutory damages, and the notice and takedown process.

Google Takedown Notices Exceed 100 Million
RIAA Chairman/CEO Cary Sherman and IFPI CEO Frances Moore observed a major milestone for the recording industry on Jan. 13. Takedown notices sent to Google from around the world for search results that link to infringing content have now exceeded 100 million. "Surely there must be a better way for users to be directed to legitimate sources of the music they seek instead of illegal ones, a way that preserves the integrity and genius of Google's search algorithm but also protects the rights of creators and the businesses that invest in them," said Sherman.

The Recording Academy actively represents the music community on such issues as intellectual property rights, music piracy, archiving and preservation, and censorship concerns. In pursuing its commitment to addressing these and other issues, The Recording Academy undertakes a variety of national initiatives. ArtsWatch is a key part of an agenda aimed at raising public awareness of and support for the rights of artists. To become more involved, visit Advocacy Action @ and sign up for Advocacy Action E-lerts.

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