TLJ News from July 16-20, 2008

3rd Circuit Rules on First Amendment and Video Speech

7/18. The U.S. Court of Appeals (3rdCir) issued its en banc opinion [79 pages in PDF] in US v. Stevens, a First Amendment case involving sale of videos depicting animal violence.

Animal rights is not a technology related topic. However, this opinion contains a detailed legal analysis of the Constitutionality of statutory content based restrictions on videos and digital images. This analysis may be employed by other courts in a wide range of other cases.

Notably, the Court of Appeals rejected the government's argument that the courts should recognize that depictions of cruelty to animals are not Constitutionally protected speech.

Robert Stevens was indicted and convicted in the U.S. District Court (WDPenn) for violation of 18 U.S.C. § 48, in connection with his sale and distribution of videos depicting, among other things, pit bull dogs attacking domesticated farm animals. Stevens did not create the videos. Some were made as far back as the 1960s. He only sold and distributed them.

This statute provides, in part, that "Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both".

It continues that "depiction of animal cruelty" means "any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State ..."

The Supreme Court over many opinions has created a range of tests to be applied when considering constitutional challenges to restrictions of speech. The consequence is that governments have to justify their speech restrictions.

The government in this case sought to avoid this whole process by seeking a holding that speech that depicts cruelty to animals is not constitutional protected, and hence not even subject to the lowest standard of review.

The Court of Appeals wrote that the government "concedes that § 48 constitutes a content-based restriction on speech. Nonetheless, the Government argues that the type of speech regulated by § 48 falls outside First Amendment protection. By doing so, the Government asks us to create a new category of unprotected speech."

The Court of Appeals continued that "The Supreme Court has not recognized a new category of speech that is unprotected by the First Amendment in over twenty-five years", and this inferior court will not do so now.

The Court applied the strict scrutiny test, and found the statute wanting. He it held that "we will strike down 18 U.S.C. § 48 as constitutionally infirm because it constitutes an impermissible infringement on free speech".

This opinion does not affect federal or state statutes that prohibit acts of animal cruelty. It affects federal or state statutes that pertain to speech, includes videos, about animal cruelty.

Twenty five year ago the Supreme Court held that child pornography is not protected speech. See, 1982 opinion in New York v. Ferber, 458 U.S. 747. Other recognized categories of unprotected speech are fighting words, threats, speech that imminently incites illegal activity, and obscenity.

In 2002, the Supreme Court refused to recognize computer generated child pornography as a category of unprotected speech. See, opinion in Ashcroft v. Free Speech Coalition, 535 U.S. 234, and story titled "Supreme Court Upholds Speech Rights of Child Pornographers" in TLJ Daily E-Mail Alert No. 412, April 17, 2002.

The just released opinion was a 10-3 en banc opinion. Judge Smith wrote the opinion of the Court of Appeals, in which Judges Sirica, Sloviter, McKee, Rendell, Barry, Ambro, Chagares, Jordan, and Hardiman joined.

Judge Cowen wrote a dissent, in which Judges Fuentes and Fisher joined. See, pages 42-79.

Cowen argued for not recognizing this category as protected speech, noting the "large number of state statutes banning this conduct", the "minimal socially redeeming value" of this speech, and the policy goal of humane treatment of animals.

This case is U.S.A. v. Robert Stevens, U.S. Court of Appeals for the 3rd Circuit, App. Ct. No. 05-2497, an appeal from the U.S. District Court for the Western District of Pennsylvania, D.C. No. 04-cr-00051, Judge Alan Bloch presiding.

FCC Files Brief in Judicial Challenge to Viewability Order

7/18. The Federal Communications Commission (FCC) filed its brief [87 pages in PDF] with the U.S. Court of Appeals (DCCir) in C-SPAN v. FCC, a petition for review of the FCC's Third Report and Order regarding mandatory cable carriage of digital broadcast television signals after the DTV transition.

Oral argument is scheduled for September 15, 2008.

On September 11, 2007, the FCC adopted a Third Report and Order and Third Further Notice of Proposed Rulemaking regarding the mandatory cable carriage of digital broadcast television signals after the conclusion of the digital television (DTV) transition.

The FCC elaborated that cable operators can "comply with the viewability requirement by choosing to either: (1) carry the digital signal in analog format, or (2) carry the signal only in digital format, provided that all subscribers have the necessary equipment to view the broadcast content."

See, story titled "FCC Adopts R&O and Further NPRM Regarding Cable Carriage of Digital Broadcast TV Signals" in TLJ Daily E-Mail Alert No. 1,640, September 17, 2007.

The FCC released the text [68 pages in PDF] of this item on November 30, 2007. This proceeding is titled "Carriage of Digital Television Broadcast Signals, Amendment to Part 76 of the Commission's Rules". This order is FCC 07-170 in CS Docket No. 98-120.

C-SPAN filed its petition for review on February 4, 2008. See, story titled "Cable Programming Networks Challenge FCC's September Viewability Order" in TLJ Daily E-Mail Alert No. 1,716, February 12, 2008.

The FCC argues in its brief that C-Span, Discovery and other cable programming networks lack standing to challenge this order, that the order is consistent with 47 U.S.C. §§ 534 and 535, and that the order does not violate the First Amendment rights of the C-Span and the other petitioners.

This case is C-Span, et al. v. FCC and USA, U.S. Court of Appeals, App. Ct. No. 08-1045, a petition for review of a final order of the FCC.

More News

7/18. Neelie Kroes, the European Commissioner for competition regulation, gave a speech in Strasbourg, France, regarding broadcasting, and especially government owned broadcasters.

NCTA and NCMEC Announce MOU Regarding Porn on Cable Company Controlled Servers

7/17. The National Cable & Telecommunications Association (NCTA) and National Center for Missing and Exploited Children (NCMEC) announced in a joint release that "all cable operators represented on NCTA's Board of Directors have agreed to help reduce the proliferation of child pornography by signing a Memorandum of Understanding (MOU) with NCMEC.

There are numerous bills pending in the House and Senate that sponsors argue would protect children on the internet. Some of these bills would also increase government regulation of service providers, impose costs and burdens upon service providers, and diminish the privacy and security of law abiding internet users.

One consequence of the just announced MOU is that it provides opponents for new forms of internet regulation another argument that legislation is not necessary. Nevertheless, sponsors of legislation renewed their advocacy of legislation. See for example, following story titled "Sen. Stevens Touts Bill to Give FCC Authority to Enforce Online Porn Statutes".

Neither the NCTA nor the NCMEC released a copy of the MOU.

Patrick Lynch, head of the and National Association of Attorneys General (NAAG), wrote a letter to Kyle McSlarrow, head of the NCTA, praising the MOU and the cable companies that signed it, and describing its content. He wrote that the cable companies "agree to utilize NCMEC's database of websites identified as containing child pornography to ensure that no such site is hosted on servers owned or controlled by any NCTA member cable company".

Federal Communications Commission (FCC) Commissioner Deborah Tate also praised the MOU. She released a statement [PDF], in which she wrote that "cable operators who provide internet service the tools to effectively guard against the proliferation of child pornography on their servers, and help build a barrier to protect children from unlawful content. With the information provided, cable providers will have critical access to lists of child pornography websites identified by Center experts so that those sites can be purged from their servers, material can be reported, and offenders duly referred to law enforcement for punishment."

Sen. Stevens Touts Bill to Give FCC Authority to Enforce Online Porn Statutes

7/17. Sen. Ted Stevens (R-AK), the ranking Republican on the Senate Commerce Committee (SCC), issued a release in which he praised the Memorandum of Understanding (MOU) between the National Cable & Telecommunications Association (NCTA) and the National Center for Missing and Exploited Children (NCMEC) regarding online child porn.

See above story titled "NCTA and NCMEC Announce MOU Regarding Porn on Cable Company Controlled Servers".

Sen. Stevens stated in this release that "This agreement is an important step in combating online child pornography and I commend the groups involved for fighting against its spread across the Internet”.

He added that "There is still more that government and industry can do together to protect children online, including education about proper online behavior and how to avoid viewing illicit material.”

Sen. Stevens also used this release to tout his bill, S 1965 [LOC | WW], the "Protecting Children in the 21st Century Act".

The Senate amended and passed S 1965 on May 22, 2008. The House has not yet approved this bill.

The bill would impose additional porn related conditions upon schools and libraries that seek Federal Communications Commission (FCC) e-rate subsidies. It would also give the FCC redundant authority to enforce certain existing statutes related to online child porn. It also provides for further study of other proposals.

Additional E-Rate Conditions. This bill would amend 47 U.S.C. § 254(h)(5)(B). Section 254 pertains to the FCC administered universal service tax and subsidy programs. Subsection 254(h)(5) imposes obligations upon schools that receive e-rate subsidies.

Subsection 254(h)(5)(b) already requires schools receiving e-rate subsidies to certify that they are enforcing "a policy of Internet safety for minors that includes monitoring the online activities of minors and the operation of a technology protection measure with respect to any of its computers with Internet access that protects against access through such computers to visual depictions that are (A) obscene; (B) child pornography; or (C) harmful to minors", and that they are "enforcing the operation of such technology protection measure during any use of such computers by minors".

S 1965 would add an additional requirement. Schools receiving e-rate subsidies must also certify that they are "educating minors about appropriate online behavior, including interacting with other individuals on social networking websites and in chat rooms and cyberbullying awareness and response". The bill does not define "cyberbullying".

FCC Enforcement of Online Porn Statutes. The bill would also amend 47 U.S.C. § 503(b)(1) to add 18 U.S.C. § 2252 and 42 U.S.C. § 13032 as predicate offenses for imposing forfeiture penalties on FCC regulated entities.

Subsection 501(b)(1) already authorizes the FCC to impose penalties upon certain FCC regulated entities that commit certain acts. Section 2252 is one of the sections of the criminal code that prosecutors use to prosecute people accused of sending, receiving or possessing child porn on their computers or laptops.

Section 503, if amended by S 1965, would provide that "Any person who is determined by the Commission ... to have ... violated any provision of section ... 2252 of title 18 ... shall be liable to the United States for a forfeiture penalty ...".

Section 503 reaches anyone with "a license, permit, certificate, or other authorization issued by the Commission", including "a cable television operator".

Section 2252 also reaches "any person who ... knowingly transports or ships in interstate or foreign commerce by any means including by computer ... any visual depiction" that constitutes child porn.

Section 13032 requires electronic communication service providers to report any person to the NCMEC if such providers obtain knowledge of an "apparent" violation of Section 2252 by such person.

The Senate passed S 1965 without any substantial discussion or debate. Hence, the Senators did not explain this language. The SCC's report (No. 110-245) provides no explanation either.

Violation of Section 2252 by an entity that holds an FCC license, permit, certificate, or other authorization is already subject to criminal prosecution by the Department of Justice (DOJ). However, as a practical matter, the DOJ prosecutes individual internet users -- not service providers. This bill would empower the FCC to penalize certain service providers, for example, if they "knowingly transport" child porn.

Similarly, failure by electronic communication service providers to report their customers is subject to an action for civil penalties. This bill would also empower the FCC to penalize these electronic communication service providers.

The DOJ already has prosecutorial and enforcement authority with respect to Sections 2252 and 13032, respectively. This bill would not take away or limit this DOJ authority. Rather, it would give the FCC redundant enforcement authority. The SCC report on the bill does not recite any evidence that the DOJ is failing to enforce these statutes, or that service providers constitute part of a child porn problem.

Moreover, this is essentially a law enforcement matter within the expertise of the DOJ, rather than a communications industry regulatory matter within the expertise of the FCC. Finally, perhaps it should be noted that this bill, if enacted, would involve the House and Senate Commerce Committees, and their members, in a high profile crime issue, that has heretofore been primarily a matter of House and Senate Judiciary Committee jurisdiction.

Social Networking Sites. This bill, unlike some other proposals, contains no regulatory mandates for social networking sites, or data retention requirements for these or other service providers. Rather, it provides for further study and education.

The bill would require the Department of Commerce's National Telecommunications and Information Administration (NTIA) to form a working group to study "industry efforts to promote online safety through educational efforts, parental control technology, blocking and filtering software, age-appropriate labels for content or other technologies or initiatives".

This group would also be tasked with studying the "practices of electronic communications service providers and remote computing service providers related to record retention in connection with crimes against children".

This bill, unlike some other pending proposals, contains no data retention requirement. Also, the SCC's report (No. 110-245) concluded that "The reported bill would have no significant impact on the personal privacy of United States citizens."

S 1965 would also require the Federal Trade Commission (FTC) to "carry out a nationwide program to increase public awareness and provide education regarding strategies to promote the safe use of the Internet by children".

Also, the bill as reported by the SCC would also have tripled the maximum fines that could be levied against providers of electronic communication services or remote computing services for violation of Section 13032. However, the full Senate approved an amended version of the bill that deleted this provision.

People and Appointments

7/17. The Senate confirmed Paul Gardephe to be a Judge of the U.S. District Court for the Southern District of New York. See, Congressional Record, July 17, at Page S6946.

7/17. The Senate confirmed Kiyo Matsumoto to be a Judge of the U.S. District Court for the Eastern District of New York. See, Congressional Record, July 17, at Page S6946.

7/17. Republican members of the Senate Judiciary Committee (SJC) issued a release in which they argued that Senate Democrats are preventing Senate consideration of qualified judicial nominees. Sen. Charles Grassley (R-IA) stated that "The Democrats have employed a lot of fancy footwork to dance around their constitutional responsibility to give fair consideration of President Bush's judicial nominees. They are doing nothing more than burning down the clock, having dreamt up every stalling tactic in the book to prevent qualified Americans from serving on the federal bench." One of the nominees being blocked by Democrats, without a vote, is Peter Keisler, who President Bush nominated two years ago for a seat on the U.S. Court of Appeals for the District of Columbia.

7/17. President Bush nominated Anthony John Trenga to be a Judge of the U.S. District Court for Eastern District of Virginia. See, White House release.

More News

7/17. The Progress & Freedom Foundation (PFF) released a report [PDF] titled "A Primer On the US Mobile Television Market". The author is the PFF's Joseph Kraemer.

7/17. The Senate Commerce Committee (SCC) reported S 2507 [LOC | WW] the "DTV Border Fix Act of 2007".

7/17. Rep. Charles Rangel (D-NY) and Rep. Sander Levin (D-MI) introduced HR 6530 [LOC | WW], the "Trade Enforcement Act of 2008", a huge bill that would amend trade related laws. It has some limited provisions related to the enforcement of intellectual property rights (IPR) in the context of trade. It would, among other things, create a Director of Intellectual Property Rights Enforcement at the Department of the Treasury (DOT) to coordinate DOT activities. However, this is a bill drafted to fall within the exclusive jurisdiction of the House Ways and Means Committee bill. It does not address IPR enforcement by other agencies that are involved in IPR enforcement. Nor does it affect substantive copyright, trademark or patent law. Nor does it amend the criminal code.

7/17. Rep. Brian Baird (D-WA) introduced HR 6540 [LOC | WW], a bill that would create a Trade Agreement Enforcement Commission. This would be a Congressionally appointed body that would monitor and investigate the executive branch, and report to the Congress. It would be created on the premise that in trade negotiations, promotion of trade should be convoluted with promotion of "worker rights". It was referred to the House Ways and Means Committee. See also, Rep. Baird's release.

11th Circuit Rejects First Sale Doctrine As Defense to Illicit Software Label Trafficking

7/16. The U.S. Court of Appeals (11thCir) issued its opinion in US v. Harrison, affirming a conviction for trafficking in illicit Microsoft software labels, in violation of 18 U.S.C. § 2318.

The Court of Appeals held that the first sale doctrine does not provide a defense to trafficking in illicit labels. Had the Court ruled otherwise, Section 2318 would have been effectively nullified.

Microsoft packages its software with certificates of authenticity (COAs) that contain a 25 digit alphanumeric key that can be used to activate a Microsoft program.

Justin Harrison obtained stand alone COAs from various sources and sold them to others, enabling them to activate pirated copies of Microsoft’s programs.

Subsection 2318(a) provides, in part, that "Whoever, in any of the circumstances described in subsection (c), knowingly traffics in ... a counterfeit label or illicit label affixed to ... a copy of a computer program ... shall be fined under this title or imprisoned for not more than 5 years, or both".

This subsection also defines the term "illicit label" to mean "a genuine certificate, licensing document, registration card, or similar labeling component ... that is used by the copyright owner to verify that a ... a copy of a computer program ... is not counterfeit or infringing of any copyright" and "that is, without the authorization of the copyright owner ... distributed or intended for distribution not in connection with the copy, phonorecord, or work of visual art to which such labeling component was intended to be affixed by the respective copyright owner".

Then subsection 2318(c) lists as one of the prerequisite circumstances that "the counterfeit label or illicit label is affixed to, encloses, or accompanies, or is designed to be affixed to, enclose, or accompany ... a copy of a copyrighted computer program".

Harrison sought to evade criminal liability by asserting a first sale doctrine defense. 17 U.S.C. § 109(a) provides in part that "Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord."

§109 is in the Copyright Act, and limits the exclusive rights of copyright, which are enumerated in 17 U.S.C. § 106. §109 does not mention §2318. §2318 is in the criminal code, and does not mention §109.

The Court of Appeals concluded that "Harrison was not charged with copyright infringement. Congress could have easily incorporated the first-sale defense into § 2318, but chose not to. Nor would Congress choose to, for allowing a first-sale defense to a § 2318 prosecution would swallow the statutory scheme in its entirety. The statute targets the secondary market in authenticating labels; the first-sale doctrine eliminates restrictions on secondary markets. Therefore, to allow a first-sale defense would be to allow precisely the secondary market Congress intended to eliminate."

Hence, the Court of Appeals affirmed the conviction.

This case is U.S.A. v. Justine E. Harrison, U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 07-13808, an appeal from the U.S. District Court for the Northern District of Georgia, D.C. No. 06-00311-CR-01-ODE-1.

FCC Announces Tentative Agenda for August 1 Meeting

7/16. The Federal Communications Commission (FCC) released a tentative agenda [pages in PDF] for its event scheduled for August 1, 2008, titled "Open Commission Meeting".

First, the FCC's agenda states that it will adopt a "Memorandum Opinion & Order that addresses Comcast's network management practices".

Second, the FCC's agenda states that it will adopt a "Report & Order concerning regulatory fees for Fiscal Year 2008 and a Further Notice of Proposed Rulemaking seeking comment on regulatory fee issues".

Third, the FCC's agenda states that its will adopt a "Memorandum Opinion & Order and Declaratory Ruling considering the transfer of control of licenses and authorizations from Rural Cellular Corporation to Verizon Wireless".

Background on Comcast Matter. On November 1, 2007, the Public Knowledge and Free Press (FP) filed with the FCC a document [48 pages in PDF] captioned "Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation For Secretly Degrading Peer-to-Peer Applications".

See, story titled "Free Press Files Complaint with FCC Alleging that Comcast Is Violating 2005 Policy Statement" in TLJ Daily E-Mail Alert No. 1,669, November 5, 2007.

That complaint alleged that Comcast interferes with its subscribers use of applications like BitTorrent. However, Comcast reached an agreement with BitTorrent back in March. Both companies also agreed that there is no need for government intervention. See, story titled "Comcast and BitTorrent Reach Accord on Network Management Practices" in TLJ Daily E-Mail Alert No. 1,738, March 27, 2008. See also, story titled "Comcast and Pando Networks to Create P2P Bill of Rights and Responsibilities" in TLJ Daily E-Mail Alert No. 1,747, April 15, 2008.

Gigi Sohn, head of the Public Knowledge, stated in a release on July 11 that "Comcast's conduct in throttling Internet traffic was deplorable when it was discovered, and remains deplorable today."

She added that she hopes that the FCC "will order the company to stop blocking and throttling Internet traffic and will make it clear that this type of behavior from any Internet Service Provider will not be tolerated."

She concluded that "At the same time, this case is limited in scope to one company and to one type of behavior. Even if the Commission ultimately issues an order against Comcast, there is still a need for legislation to prohibit discrimination by telephone and cable companies while preserving the rights of Internet users and companies that do business on the Internet."

EC Releases Paper and Request for Comments on Exceptions and Limitations to Copyright

7/16. The European Commission released a document [22 pages in PDF] titled "Green Paper: Copyright in the Knowledge Economy". It enumerates numerous proposed exceptions to and limitations on the exclusive rights of copyright, offers issue summaries, and requests public comments.

These proposed exceptions and limitations are not binding on member states. This document advocates promoting "free movement of knowledge", while downplaying maintaining incentives to discover and create.

The proposed exceptions are numerous and broad enough, if enacted into law in full, to substantially swallow the rule that creators have exclusive rights in their creations.

These exceptions include "for the benefit of libraries and archives", including digitizing collections and making them available to users online, and special treatment for "orphan works".

These exceptions also including "allowing dissemination of works for teaching and research purposes", "for the benefit of people with a disability", and "for user-created content".

Orphan Works. The orphan works section of this document states that "The issue of orphan works is mainly a rights clearance issue i.e. how to ensure that users who make orphan works available are not liable for copyright infringement when the rightholder reappears and asserts his rights over the work. Apart from liability concerns, the cost and time needed to locate or identify the rightholders, especially in the case of works of multiple authorship, can prove to be too great to justify the effort."

It continues that "Copyright clearance of orphan works can constitute an obstacle to the dissemination of valuable content and can be seen as hampering follow-on creativity."

It also makes the point that "The majority of the Member States have not yet developed a regulatory approach with respect to the orphan works issue", and that "The potential cross-border nature of this issue seems to require a harmonised approach."

This document states that its purpose is "to foster a debate on how knowledge for research, science and education can best be disseminated in the online environment". It poses numerous questions, and solicits responses. The deadline to submit comments is November 30, 2008.

More News

7/16. The House amended and then passed by voice vote HR 5959 [LOC | WW], the "Intelligence Authorization Act for Fiscal Year 2009". The Senate has yet to approve the bill.

7/16. The European Commission announced in a release that it "adopted two initiatives in the area of copyright. First, the Commission proposes to align the copyright term for performers with that applicable to authors, in this way bridging the income gap that performers face toward the end of their lives. Secondly, the Commission proposes to fully harmonise the copyright term that applies to co-written musical compositions."

7/16. The European Commission announced in a release that it "has adopted an antitrust decision prohibiting 24 European collecting societies from restricting competition by limiting their ability to offer their services to authors and commercial users outside their domestic territory. However, the decision allows collecting societies to maintain their current system of bi-lateral agreements and to keep their right to set levels of royalty payments due within their domestic territory."

7/16. The Copyright Office published a notice in the Federal Register that announces, describes, and sets comment deadlines for, it notice of proposed rulemaking regarding the scope and application of the Section 115 compulsory license to make and distribute phonorecords of a musical work by means of digital phonorecord deliveries. Initial comments are due by August 15, 2008. Reply comments are due by September 2, 2008. See, Federal Register, July 16, 2008, Vol. 73, No. 137, at Page 40802-40813.

Go to News from July 11-15, 2008.