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Issue Watch

2016 Issue Watch

Second Circuit Rules for Microsoft in Search Warrant Case

Today the United States Court of Appeals for the Second Circuit ruled in a case brought by Microsoft addressing the global application of U.S. search warrants for people’s email. The court ruled in favor of Microsoft overturning an earlier ruling from a lower court.

We obviously welcome today’s decision by the United States Court of Appeals for the Second Circuit. The decision is important for three reasons: it ensures that people’s privacy rights are protected by the laws of their own countries; it helps ensure that the legal protections of the physical world apply in the digital domain; and it paves the way for better solutions to address both privacy and law enforcement needs.

First, this decision provides a major victory for the protection of people’s privacy rights under their own laws rather than the reach of foreign governments. It makes clear that the U.S. Congress did not give the U.S. government the authority to use search warrants unilaterally to reach beyond U.S. borders. As a global company we’ve long recognized that if people around the world are to trust the technology they use, they need to have confidence that their personal information will be protected by the laws of their own country.

While Microsoft filed and persisted with this case, we benefited every step of the way from the broad support of many others. We are grateful for this support, including the filing of amicus briefs in the case by 28 technology and media companies, 23 trade associations and advocacy groups, 35 of the nation’s leading computer scientists and the government of Ireland itself. The enormous breadth of this support has been vital to the issue, and it remains so as we look to the future.

Second, since the day we filed this case, we’ve underscored our belief that technology needs to advance, but timeless values need to endure. Privacy and the proper rule of law stand among these timeless values. We hear from customers around the world that they want the traditional privacy protections they’ve enjoyed for information stored on paper to remain in place as data moves to the cloud. Today’s decision helps ensure this result. » Read More

FCC Majority Votes for Media Ownership Item

An FCC source confirms the FCC's Dmeocratic majority has voted to approve the FCC's quadrennial media ownership review notice of proposed rulemaking (NPRM).

House Communications Subcommittee Chairman Rep. Greg Walden (R-Ore.) had said at an FCC oversight hearing Tuesday (July 12) that he had been told that was the case. That came in an FCC oversight hearing in his subcommittee.

That item does not loosen or lift duopoly or crossownership rules, though it does add a failing newspaper waiver to newspaper-broadcast crossownership rule. It also revives the FCC's restriction on existing TV joint sales agreements.

Walden said he hoped the FCC item had not ignored Congress' "very specific views" to the FCC through the legislative process on JSAs, adding: "That would be very disappointing."

Congress has passed legislation that grandfathers JSAs existing before the FCC's March 2014 vote that would otherwise have to have been unwound under the FCC rules and allows those grandfathered JSAs to change hands without having to be unwound. » Read More

Copyright Office Concerned About FCC Set-Top Proposal

As expected, the FCC's set-top proposal got a lot of attention at the House Communications Subcommittee FCC oversight hearing Tuesday. Among the takeaways were that the U.S. Copyright Office is concerned about the proposal, and FCC chairman Tom wheeler is committed to working with the office to allay those concerns.

Wheeler also said he was encouraged by the cable operators' "ditch the box" alternative to his own "unlock the box" proposal, or at least the signal it sent about willingness to talk, but did not show the proposal a lot of love, telling the legislators that "one page is not a proposal, it's a press release."

He also said that the cable proposal appeared to require a gateway device for TV sets, meaning another piece of hardware, adding that he knew how much the subcommittee didn't like extra hardware. That was a reference to Republican and cable operator complaints that Wheeler's "unlock the box" proposal could mean extra equipment.

Rep. Marsha Blackburn (R-Tenn.) channeled former Rep. John Dingell in asking a series of yes-or-no questions about the set-top proposal. » Read More

Court Upholds FCC's Net Neutrality Rules

In a big and sweeping victory for the FCC, the Obama Administration and FCC chairman Tom Wheeler, a three-judge panel of the U.S. Court of Appeals for the District of Columbia has let stand the FCC's new Open Internet order.

That includes the definition of Internet service providers as common carriers under Title II of the Communications Act; the application of the rules to mobile broadband providers; and the finding that the FCC’s order was neither unconstitutional nor violated procedural safeguards.

"Three separate groups of petitioners, consisting primarily of broadband providers and their associations, challenge the Order, arguing that the Commission lacks statutory authority to reclassify broadband as a telecommunications service, that even if the Commission has such authority its decision was arbitrary and capricious, that the Commission impermissibly classified mobile broadband as a commercial mobile service, that the Commission impermissibly forbore from certain provisions of Title II, and that some of the rules violate the First Amendment," said the court, adding that it was denying all those challenges. » Read More

Redskins Ask Supreme Court To Review Trademark Case

The Washington Redskins have asked the Supreme Court to review their appeal of a federal judge’s July ruling that upheld the cancellation of their trademark. But there’s a catch: the team only wants the high court to consider its case if it takes up a similar one involving a band called “The Slants.”

In December, a federal appeals court ruled that a provision of the 1946 Lanham Act, which holds that trademarks could be cancelled if they “may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute,” was an unconstitutional violation of the First Amendment. That ruling came about after the U.S. Patent and Trademark Office (PTO) had rejected a trademark for the Oregon-based band because it felt that “The Slants” disparaged Asian Americans. » Read More

For an extended story, see Washington Post print edition, April 27, 2016, p. B5.

Senate To Look at Network Neutrality Rule

The Senate Homeland Security and Governmental Affairs Committee will hold a hearing April 20 on federal rulemaking and the "administrative state." Among the topics being addressed is the FCC's network neutrality rulemaking, which Republicans have been highly critical of, including the perceived pressure from the Obama Administration to reclassify ISPs under Title II common carrier regs.

Witnesses at the hearings will be: Jonathan Turley, professor of public interest law at George Washington University; Randolph May, president of the Free State Foundation; Bradford Campbell, counsel, Drinker Biddle & Reath LLP; William Kovacs, senior VP, technology & regulatory affairs, U.S. Chamber of Commerce; and Robert Weissman, president, Public Citizen.

Elsewhere on the network neutrality front, the U.S. Court of Appeals for the D.C. Circuit released a trio of decisions Tuesday, but still no sign of a decision on ISPs' challenge to the Open Internet order, which was argued Dec. 7. » Read More

FSF Paper: Copyrights Are Natural Rights

Patent and copyrights are essentially a contract between the federal government and inventors and artists, which "heightens" the government's responsibility and "solemn promise" to protect those rights.

That is the central theme of a new paper, "The Public Contract Basis of Intellectual Property Rights," being released today (April 19) by free market think tank The Free State Foundation, from authors Randolph May and Seth Cooper.

It is the latest in a series of papers on intellectual property rights, a key question in an age when digital copying and distribution make protecting those rights increasingly problematic.

The idea is that the natural right to property extends to the right to assign it by contract, akin to the natural right to establish governments by the consent of the individual through a social compact.

"Some scholars have wrongly inferred from the public contract concepts that IP rights do not rest on natural rights premises but instead simply reflect government policy preferences about what is useful to the public," they write. "That is an impoverished view concerning the relationship between contracts and IP rights." » Read More

Supreme Court Won't Review Google Mass Digitization

The major Hollywood studios were not pleased Monday after the Supreme Court declined to hear the appeal of a decision that it was OK for Google to digitize millions of books and make them available online without compensating the copyright holders.

In a blog post after the High Court denied cert, the Copyright Alliance, whose members include Disney, Sony, Universal and Viacom, said the court had missed a "golden opportunity" to at least clarify how the fair use doctrine should apply to digital media and new technologies for which it argues there is no adequate fair use test.

The alliance says that the court's ruling was based on the "dubious" finding that "Google’s mass digitizing effort was a fair use because the Google Books project conveys 'information' about the works to users and therefore transforms the books."

The court relied on the "transformative use" test to draw that conclusion based on a 20-year-old decision that the more a work was transformed, the fewer other factors have to be met for it to be considered fair use. One of those factors is the creation of a new, expressive, work, which studios argue didn't happen by Google simply digitizing the works. » Read More

Study: TV Is Dominant News Source

National and local TV news was the dominant source people rely on for news topics they follow most closely, but engendering trust across all types of news outlets has become a tougher job.

Only 6% of people said they have a lot of confidence in the media, about the same as Congress and below most other institutions.

That is according to a study by the Media Insight Project, a partnership of The Associated Press-NORC Center for Public Affairs Research and the American Press Institute, being presented at the Newspaper Association of America mediaXchange 2016 conference in Washington.

The study found that a third of the respondents (31%) cited national TV news, followed by 24% for local TV station news. Radio was next at 10%, followed by 9% for nich or specialty publications, 7% for local or national (or international) newspapers, and 7% for online-only news sources.

Those who rely on local or national TV are more likely to be looking for in-depth reporting (72%), than those who rely on specialized publications (62%) or online (57%).

But more are looking to TV to reinforce their views (37%) than newspapers (23%). Local TV news watchers are also the most likely to say they want to see people in their community and who are like them in the local news. » Read More

NAB: FCC Can't Force Online Play of TV Content

The National Association of Broadcasters told the FCC this week that to grant the pay-TV industry what it wants in the ongoing retransmission consent good faith negotiations proceeding would make it an unwitting accomplice in that industry's attempt to grab more revenue. One of the things the FCC can't compel is online play, NAB said.

Various pay-TV operators want the FCC to require outside arbitration of retrans impasses, make blackouts de facto bad faith negotiating, and wouldn't mind the FCC scrapping the syndicated exclusivity and network nonduplication rules that backstop contractual exclusivity.

They have also suggested the FCC should prevent broadcasters from withholding content online during impasses, but NAB says it would be unlawful for the FCC "to require broadcasters to make their content available online."

"Federal copyright law gives broadcasters the right to control whether, how and when their content is distributed," NAB said. "Nothing supports the view that the FCC can supersede copyright law to require broadcasters to publicly perform their copyrighted material online."

» Read More

Obama in SOTU: We've Protected an Open Internet

President Obama stuck generally to the "vision thing" in his last State of the Union (SOTU) speech, talking about his vision of America as a strong, compassionate country that takes care of the poor, the environment, and its business at home and abroad. But he also worked in some specifics that resonated with the media community, including trade and an open Internet.

He talked about the need for technological innovation, something Consumer Technology Association had said needed to be in the speech, but did not spend much time on specifics.

He also listed Open Internet rules among the things he said his Administration has done to nurture that spirit of innovation. "We've protected an open internet, and taken bold new steps to get more students and low-income Americans online," he said, an apparent reference to the FCC's E-rate program to boost online access by schools and libraries.

He also called for congressional passage of the Trans-Pacific Partnership, a trade deal backed by the Hollywood TV and movie studios. » Read More

McDowell: Broadband Rate Bill Needs Tightening

Former FCC Commissioner Robert McDowell plans to tell Congress that a new bill meant to block the FCC from using Title II authority over ISPs to regulate broadband rates should explicitly extend to rates ISPs may charge to edge providers or other ISPs or backbone providers (interconnection).

McDowell, who is a partner at Wiley Rein, is testifying at a House Communications Subcommittee hearing Jan. 12 on four communications bills, including H.R. 2666, the No Rate Regulation of Broadband Internet Access Act.

According to his prepared testimony, McDowell says that: "To avoid any confusion as to what H.R. 2666 is intended to address, it should be revised to state with specificity that it refers to all forms of regulation of the rates for Internet access services, including peering and interconnection." » Read More