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The Supreme Court’s Cyberlaw Influence — Not Much, Thankfully

Tom O’Toole at BNA TechLaw writes that Supreme Court nominee Sonya Sotamayor is unlikely to have any substantial influence on the Court’s cyberlaw jurisprudence because there basically is none:

The Supreme Court has never reviewed a case involving the Computer Fraud and Abuse Act.

The Supreme Court has never reviewed a case involving the Electronic Communications Privacy Act.

The Supreme Court has never reviewed a case involving Section 230 of the Communications Decency Act (which gives interactive computer services immunity from most claims arising from the publication of third-party content), though it did consider, and strike down, the prohibitions against indecent online speech contained in another part of the CDA in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).

The Supreme Court has never reviewed a case involving the CAN-SPAM Act or the Digital Millennium Copyright Act.

The Supreme Court has never reviewed a case involving electronic contracting, jurisdiction arising from online activities, cybersquatting or any other domain name-related dispute.

Aside from Doe v. Chao, a case involving standing to sue the federal government under the Privacy Act, the Supreme Court has never taken a case involving online privacy or security (GLB, COPPA, FTC Act, you name it). If you want to count Bartnicki v. Vopper, go ahead, though I don’t think that obscure decision in any way undermines the point I am trying to make here.

He’s right, but I find that a plus, not a minus. The evolution of this rapidly changing medium really does not need the glacial pace at which the Supreme Court decides issues, and certainly benefits from the pull-and-tug among lower courts to strike the appropriate balances among regulation, civil rights, legislative power, law enforcement and the other technology policy matters affecting the Internet. When the Supreme Court speaks on tech issues — witness the Sony Betamax case from nearly 25 years ago or the Brand X decision from 2005 — it often leaves the law in a more polarized and confused state than before. So IMHO, we don’t need no stinkin’ badges from the Supremes.

Challenging DMCA Conventional Wisdom

Most observers believe that, right or wrong, the Digital Millennium Copyright Act (DMCA) prohibits copying of DVDs, even for backup purposes, because of its Content Scrambling System (CSS) encryption technology. Now Real Networks is challenging that conventional wisdom in California, where its RealDVD product is under attack. But the litigation developments actually suggest that Real is taking a different direction. According to CNet News, a “surprise” expert witness for Real:

disputes Hollywood’s claims that the industry included in a license for its DVD-encryption technology a ban on copying DVDs while in a computer hard drive. Real argues that because it possesses a license to use CSS and because the license doesn’t prohibit the copying of DVDs in all cases, Real isn’t guilty of breaching its contract.

How Real squares its contract argument with the DMCA claims against it by the movie studios is convoluted. Without getting into a lot of detail, the gist of the DMCA prohibition on reverse-engineering is that no one is permitted to “circumvent” technological means applied to protect digital content (i.e., DRM or content protection). The anti-circumvention provisions “put the force of law behind any technological systems used by copyright owners to control access to and copying of their digital works.” That’s exactly what CSS does, as I understand the technology. The fact that a CSS license may not prohibit copying is not the same as whether it is permitted under DMCA. So this approach is a good one for Real, but almost surely will be less than acceptable to the “open commons” crowd, which has detested the DMCA standard for a long time.

If you are interested, and especially if you disagree, please tell the U.S. Copyright Office, which is handling another periodic rulemaking to define what is and is not prohibited under the statute.

They Call This “Justice” In Italy

Charging a Google executive criminally for a YouTube video is almost as crazy as indicting the Williams F1 Team in 1994 for manslaughter in the aftermath of the racing death of Formula One legend Aryton Senna. Google Execs on Trial in Italy Over Video” [Digital Media Wire]. Thank goodness for jury nullification, because under no rational legal system can hosting a Web video be considered a personal crime by corporate officer

Wasting More Tax Dollars

So exactly why are we paying for the “DTV transition” anyway? One can argue that taxpayers have a moral obligation to subsidize lower-class people in times of economic change. Obama urges Congress to postpone DTV transition [CNET News]. But did we pay for folks in the 1920s to switch from horses to automobiles, or in the 1960s to switch from B&W to color televisions? No way.

In my view, having taxpayers foot the bill for “DTV converter boxes” would be like sending everyone a check from the Treasury so they can subscribe to cable or satellite television. It’s completely absurd and a waste of money.  Sorry, Rachelle Chong, but that’s how I see it.

Regulators In the Valley

Another great title (and incisive post) from my friend and client Drew Clark at BroadbandCensus.com. I suppose the reaction in Silicon Valley to folks saying they’re from Washington, DC and are “here to help” may just be slightly more favorable going-forward. FCC Chairman Kein Martin’s Incredible Silicon Valley Wi-Fi Adventure. Well done!

Advice or Ostriches?

The lawyers at WilmerHale are undoubtedly excellent. But this "advice" is hardly new or newsworthy. Washington Lawyers' Advice to Silicon Valley: Don't Sit on Sideline [SiliconValley.com]

I've been representing high-tech companies, start-ups and VCs on technology policy issues for more than 15 years, including many many heavyweights — starting with Netscape at the dawn of the commercial Internet in 1995. To do a good job on tech issues, one must not only understand the technology itself, but how to relate to the values of Silicon Valley. So the question in my view is not whether the Valley will sit on the sidelines — Eric Schmidt's high-level economic advisory role with Obama shows clearly it does not — but rather how, when and on what issue(s) it will engage Washington. The days of the "ostrich syndrome," like Bill Gates in the early 1990s, ignoring D.C. in the hopes it would just go away, are passe — LONG long gone.

Small Isn’t Beautiful Anymore

SJM logo

I’ll let my op-ed in Sunday’s San Jose Mercury News speak for itself. Opinion: In the Tech Industry, Small Isn’t Beautiful Anymore. Might be a little narcissistic to blog about one’s own article, no?


Wrangling over the proposed Google-Yahoo advertising deal makes one wonder whether scale, a virtue in Silicon Valley, can also be a vice. Some have insisted that Google is too big. But with apologies to economist E.F. Schumacher — author in 1973 of the generational anthem “Small Is Beautiful” — big isn’t bad anymore, it’s good.

A mere 10 years old, Google so dominates Internet search that the company’s name has become a verb. Google has grown large because it is good and its engineers continue to design innovative new products. That is something Web aficionados and antitrust regulators should applaud.

Google has already changed the way businesses advertise. The advertising issue is one its critics point to as evidence that Google is so large, the antitrust laws should kill the Google-Yahoo advertising venture before it launches later this month. The idea, as some ad agents have said, is that a combined Google-Yahoo share of “Internet search advertising inventory” would be competitively harmful. This is mushy reasoning being peddled to spread economic paranoia.

Everyone agrees that the principal objective of antitrust law is economic efficiency. To assess Google-Yahoo, therefore, one must first define what market we’re talking about. References to Internet search “inventory” are analytically dishonest, disguising the fact that search advertising — of which Google holds a 63 percent share — competes directly with Internet display advertising. Online display advertising is commanded by MySpace, AOL and Microsoft, and Google’s presence is tiny. As the data on rapidly declining advertising revenues for newspapers, network television and other “legacy” media reveal, Internet advertising is also becoming a substitute for advertiser dollars that used to flow elsewhere.

The consequence is that the relevant market cannot exclude Internet display advertising or even be limited to Internet advertising. And once the market covers something more than search ads, all serious competitive arguments against the Google-Yahoo transaction fade away. Take just a few.

Microsoft insists the alliance is unlawful price fixing because it will increase search advertising prices. To the contrary, neither Google nor Yahoo will be able to dictate minimum bids or prices to the other and, since advertisers will have a greater supply of more valuable search ads to buy — the demographically targeted ads produced with Google’s famously secret algorithms — the relative price for Internet search advertising will go down. That’s simple supply-and-demand, and it’s a good thing.

Others argue that Yahoo needs to remain independent and cannot be allowed into Google’s orbit. But this is not a merger or acquisition. If Yahoo’s board of directors, having just finished a bruising battle with Microsoft, violated its duty to maximize shareholder value, that is hardly the same as eliminating a competitor from the market.

Some suggest the government must act quickly to nip the growing power of Google in the bud. But in our market system we do not punish a successful company because it might do something bad in the future. Microsoft should be especially ashamed for endorsing this suggestion, since its decade-long antitrust fights here and in the EU arose from its bad acts, not its bigness. And unlike a merger, there can be no problem here of “unscrambling the egg” if things go south.

That leaves the only real objection to the Google-Yahoo! alliance as consumer privacy. There may be valid privacy objections to Google’s activities; indeed, Google might someday become so big that its possession of huge troves of personal data alone creates a threat to privacy. But as the FTC decided in approving the Google-DoubleClick merger in 2007, antitrust laws are not a substitute for privacy regulations.

So even here, privacy and bigness are not enemies. Unless Google starts acting badly in the competitive marketplace, the government should just leave it alone.

Glenn B. Manishin is an antitrust partner with Duane Morris in Washington, D.C. He was counsel for ProComp, CCIA and other software competitors challenging the Bush administration”s antitrust settlement with Microsoft. He wrote this article for the Mercury News.

 

Apple & Antitrust

Psystar claims Apple’s restrictions on third-party hardware makers violate U.S. antitrust laws. Mac Clone Maker Psystar Plans Antitrust Suit Against Apple [InformationWeek].

Woah, that’s absolutely ridiculous. A manufacturer cannot “monpolize” the market for its own products, and whether or not Apple’s refusal to license Mac OS X is a good business strategy, the Sherman Act permits it to keep the Mac a closed ecosystem. At least and until Apple’s market share of PCs get somewhere within lurking distance of Windows’ 90%+, there is no conceivable problem here. But like the iPod/iTunes “tying” cases — pending class actions filed last December — it is often and unfortunately more economic for a company to settled such bogus claims than to litigate them. Hope Apple shows some real backbone on this one!

A Bureaucratic Farce

That’s what Andrew Orlowski of the UK’s The Register calls Friday’s decision by the Federal Communications Commission to cite Comcast for unlawful violation of "network neutrality" principles. One can agree or disagree with the proposition, endorsed by FCC Chairman Kevin Martin, that Internet users should be free to reach any site without interference by their ISPs.

“We are preserving the open character of the Internet,” Martin said in an interview after the 3-to-2 vote. “We are saying that network operators can’t block people from getting access to any content and any applications.”

But it is just absurd to conclude that any federal government agency should be allowed to issue what it expressly terms a set of non-binding "principles" and then make an official finding of illegality when a company fails to follow those principles. Confusing is an understatement here.  Dissenting Commissioner Rob McDowell’s complaint that the FCC here is actively regulating the Internet — or at least historically unregulated "enhanced services" offered by ISPs, unlike common carrier telecommunications services — is spot on. 

Ahead Of Its Time Redux

Business Week has an opinion piece in the current issue — cutely titled "Talk To Me, Fridge" — predicting an automated smart home where applicances talk to each other, and external sources like the electric company, automatically.  Well, more than a decade ago I represented Echelon Corp. of Silcon Valley in a legislative battle over whether some FCC standards would interfere with competition for home automation; our congressional sponsor, Rep. Anna Eshoo, used The Jetsons as her example of the technical future.  Few of us realized, then, that more than a decade later the automated smart home would still be another 10 years away. 

But Drew Lanza’s take seems to assume that the chip component cost curve is all that’s standing in the way of a networked house in the very near future:

That’s thanks in part to the proliferation of Wi-Fi, technology that lets us connect to the wireless Internet at high speeds—not only from our homes and coffee shops but also from cars, airplanes, and even parks. To that we can now add a new generation of task-specific semiconductors so inexpensive that they can be deployed in the billions to various sensors and objects and then connected to the Internet via the same wireless technology.. . . In the coming years, designers will deliver these semiconductors for a buck or two and get them to run off a single AAA battery for years.

Sounds a lot like what Scott McNealy said about Jini a decade ago and what technologists projected for RFID even closer than that.  They were wrong and, I suspect, so is Lanza.