AT&T and Copyrights

Furthering a trend in online copyrights enforcement, AT&T announced yesterday that it has struck an accord with the RIAA in a self-policing policy. I'm not surprised to see this measure gaining traction. The large sum law suits the RIAA has filed over the past decade have not only failed to deter illegal downloads, they have been a public relations nightmare. While I doubt the new plans will be effective without proper incentive, (the article hints there is not any quid-pro-quo between AT&T and the RIAA) I at least think it will be more effective and far less objectionable. But, it again broaches the issues of internet privacy I posted earlier. If the Congress does pass a bill legislating privacy, I'd be interested to see if there's some sort of protection for ISPs to monitor file sharing.

Internet Privacy one step at a time

When George Orwell told us big brother was watching his future detailed a world where government had absolute control over information and power. How different we are 24 years after his predictions, in a world where the greatest threat to privacy and personal information is not the public sector rather the private one. Whether it's a search engine, major software developers, e-mail services, mal-ware, spyware or internet service providers, it seems like someone is always trying to figure out where we're going on the internet, what we're looking at and the best way to sell things to us.

Enter the government, Orwell's amorphous antagonist, but in this future might actually be that which can save us from Big Brother, or whoever is watching. There has been a flurry of stories coming out of the New York Times lately which indicate some sort of progress on internet privacy rules. However, news from the Times Online and the Met News seem to be indicating a strong resistance to any European style privacy rules.

What needs to happen in order for these restrictions to have any real teeth is international cooperation. The internet, more than television print or radio, is an a global medium which requires global solutions. But, in this climate, as protectionism takes hold there's going to be a lot of resistance for international cooperation on anything.

I think that while internet privacy won't likely be discussed at the G20 next month, it's fate is largely bound to the success of those talks about larger issues of trade policy. If the G20 can encourage a global effort to unite economies and governments, we will start to see the framework through which true consumer protection on the internet can be built.

NPR's foot fetish troubles

Two weeks ago, NPR caught some heat from its listeners about a segment that contained graphic descriptions of a man with a foot fetish and other abnormal sexual desires. The enraged listeners called in with complaints about the program, and demanded that a warning be played before any such segments to, as the old refrain goes, protect the children.

This goes back to the original debate in the late 1990's when Congress decided to institute the TV Parental Guidelines. Under the original rules news and sports programs were exempt from these guidelines. But it does raise two interesting points I've been wondering about. Whether content should be subject to these parental guidelines and to what extent they are effective.

First I think that the idea of the parental warnings have wholly backfired. The hysteria over violent video games (2000's) graphic television (1990s) and irreverent heavy metal lyrics (1980's) has not stopped growth in these industries. Arguably, warning labels that have been affixed to these products have promoted their sale, rather than deterred it.

That being said, providing guidelines to consumers is not necessarily a bad idea, nor do I think it rises to the level of censorship. Much like with FDA mandated nutrition facts on breakfast cereal and other processed foods, I believe consumers have a right to a fair warning of what they are purchasing. So, I don't think it was unreasonable to ask NPR for a clearly worded warning about the content of the show. However, I do wonder about such a warning's effectiveness. I myself am a station surfer. If I don't like something, I switch to a new station.

The likelihood that I would hear such a warning before I turned on a segment is very remote. Furthermore, like with albums, it is difficult to tell what constitutes graphic material. Thrash metal band Slayer's 2001 album "God Hates Us All" bares the same parental advisory sticker that has been affixed to a Justin Timberlake album. But, despite it's probable lack of effectiveness I think NPR could cover its bases by simply providing a 5 second warning prior to airing any further racy segments.

USA! USA! We're number one!

I was looking at this Daily Chart by the Economist which ranks the world's public officials by country on disclosure requirements. I found a number of the results surprising.

France and Italy have less disclosure than Mexico. Typically public disclosure is the best defense against corruption, and it's surprising to see that Mexico, which is very high on the Corruption Perceptions Index, ranked above Italy and France.

The United States is number one. Go FOIA? I'm going to go ahead and assume this poll didn't include Bill Deweese or former President Bush's take on "executive privilege".

Russia, a country where journalists critical of President... wait.. Prime Minister Czar Putin, are dying at an alarming rate, ranks 68.

Right to Know Act expands

Today the Office of Open Records issued a ruling that the names and birth dates of people who hold government contracts are subject to be divulged under the Right to Know Act. This is not a year after Pennsylvania re-vamped the old Right to Know Act, which was considered among the most out-dated and ineffective of all similar state statutes.

That got me thinking about how the rules at the federal level seem to affect the states at times. Could this possibly be a result of President Obama's order for a presumption of openness?

I'll be interested to see if any other states are changing their practices in light of the administrations new orders.

Inquirer in Bankruptcy court

I wonder if the Philadelphia Inquirer is paying Dechert $500 per hour for a first year associate to research the basic tenants of bankruptcy law.

Fios in Philly

About two weeks ago, the Philadelphia city council approved allowing Verizon to establish a FiOS network in the City of Brotherly Love, bringing a direct competitor to the cable service provided by Comcast.

In a lot of ways, Philly is a company town. Comcast is one of the largest area employers; the largest building in the city bares the name "Comcast Center"; the city draws millions of dollars in tax money from the comapny every year. And yet here we are, Comcast is now having to compete against Verizon on its home turf.

During discussion many of the counsel members expressed concerns over how the $1 billion cable network will be distributed as to not leave out minority communities, and concerns over public access programming. And yet, the bill passed unanimously. Money talks, I suppose.

It's interesting how deregulation has affected television and radio so differently. Radio seems to be solidifying into a monopoly held by Clear Channel, whereas television is now diversifying (albeit very slowly). I think it's reflective of how radio is dying as television thrives.

In an Internet far far away...

About a year before the general election last November, then Senator Obama pledged his support to promote net neutrality . Because the economic climate is in such shambles, we have heard little from Washington or the administration about the FCC or net neutrality. But, those of us in media land are still expecting him to make good on his promises. So I’m wondering the following question: When will formal net neutrality rules finally come?

The question comes down to whether Congress or the FCC will act first. It’s a given that Congress is a very slow entity. But the FCC doesn’t adapt as quickly as Facebook does. And there are concerns that the FCC doesn’t have the regulatory authority to pass a net neutrality act. But, Obama's pick for Chairman, fellow Harvard Law Review staffer Julius Genachowski, seems like a man who knows how to operate in a fast paced digital business world. Having formerly worked for the FCC under Clinton, he already knows the Commission well enough to avoid having to work against a learning curve. He has also been pegged as a strong net neutrality advocate by the good people at SaveTheInternet.com.

With that in mind, we should remember that he still hasn't been confirmed, and the way the Senate seems to be moving on Obama's other confirmations, I wouldn't expect Genachowski to have his name stenciled on the door of his office before Memorial Day. If, assuming he filed he’s legit and is confirmed within the next few weeks, I imagine we’ll see negotiation with the industry through the summer and something tangible by Halloween. This type of regulation takes a long time to draft and institute and there are a number of competing interests here.

Of course, John Boehner doesn’t believe the FCC has the right to regulate Net Neutrality at all. Judging at how effective he and his colleagues in the Senate have been at controlling the dialogue in Washington, I imagine that he could hold this up for a year or more, at the very least.

Let’s just hope Mr. Genachowski has done his taxes correctly.

Facebook Relents

As many of you have heard, Facebook recently changed its terms of use from this:

By accessing or using our web site at www.facebook.com or the mobile version thereof (together the "Site") or by posting a Share Button on your site, you (the "User") signify that you have read, understand and agree to be bound by these Terms of Use ("Terms of Use" or "Agreement"), whether or not you are a registered member of Facebook.

To this:

We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms of Use at any time without further notice. If we do this, we will post the changes to these Terms of Use on this page and will indicate at the top of this page the date these terms were last revised. Your continued use of the Service or the Site after any such changes constitutes your acceptance of the new Terms of Use

Today it seems that the debacle over the Facebook Terms of Use has turned out in favor of users. I'm actually somewhat surprised. It seems to me the average Facebook user isn't exactly familiar with the basic tenants of contract law. And those that are, and who are concerned about the implications would probably continue to use the service (I know I did), so what did Facebook have to lose?

What I was concerned about was the possible implications this would have in contracts of adhesion. Users agree to the terms (typically without reading them) when they first sign up for the service. And even though the users don't read, can't negotiate or might not even understand the contract if they did read it, it is still binding, thanks to the Supreme Court. Carnival Cruise Lines v. Shute, 499 U.S. 585 (1991). What I'm wondering is how Carnival Cruise Lines will affect contract law in the digital age.

As we have seen, Facebook can change its terms of use after users have agreed to it. Is this a binding contract? If we take the Carnival Cruise Lines view where consumers need only purchase a product with terms that follow, she is accordingly bound by those terms. However, much less persuasive precedent does exist. In Specht v. Netscape Communications, 150 F. Supp. 2d 585, affirmed Specht v. Netscape Communications, 2002 WL 31166784 (2002)., a federal district court held that an online license, where the licensee had no notice of the terms, no binding contract was formed. In traditional contract law, this makes sense. But, in this digital age, it's becoming harder for online distributers to hold digital offerees accountable to their obligations.

I'll be curious to see if any more states adopt the Uniform Computer Information Transactions Act.

Noonan v. Staples

Recently, the first circuit opened the door for libel claims in Massachusetts where the published statement is true. Noonan v. Staples Robert Ambrogi wrote a piece dissecting the court's reasoning and I won't reiterate what he said. But I am concerned about the implications this might have in society.

Ultimately, this case indicated that plaintiffs could recover for damages in the commonwealth if they could prove that the statements were aired with "actual malice." And not the "actual malice" the Supreme Court outlined in Sullivan v. New York Times, where a publisher knew statements were false but printed them anyway, but a kind that is meant to intentionally harm the reputation of another. This is a frightening precedent.

Essentially what I'm afraid the first circuit has done, in relying on a 106-year-old statute, is create a means to recovery for individuals to sue to recover for retelling true stories that are out of context. What's so frightening about this precedent is how it could affect the internet community. Imagine if you will what the implications this will have for sites like YouTube.com and Failblog.org, where embarassing videos and pictures are digital gold. If this mother is allowed to recover from the owners of the Fail Blog, then there is seriously something wrong the state of defamation law in this country.

To begin...

This being my first post I suppose I should introduce myself. I'm currently a first year law student at Drexel University in Philadelphia. I am a graduate of Point Park University, and hold a bachelor's degree in Journalism and Mass Communication. The purpose of this blog is to discuss how the law affects media, and how media affect law.

I remember my college media law professor saying "the only people juries hate more than lawyers are journalists." And I've often wondered what exactly attracted me to each profession that repels others. Ultimately I'm hoping I can provoke some thoughtful discussion about how this interaction affects the rest of society and their view of media and law.