Ah, The Joys Of Modal Regulation/Legislation

Lafayette hits snag in fiber build

On Wednesday, a state district judge ruled that the Lafayette Utilities System (LUS) must follow a different portion of state law to issue $125 million in bonds to pay for its planned fiber-optic telecommunications business. The ruling opens the door for a special election to decide whether the LUS can borrow the money necessary to fund the project.

The utility system, which built a fiber network to service its utilities business, has been offering wholesale bandwidth services to at least 11 Internet service providers, and providing retail broadband services to city agencies, since 2002. Now the LUS wants to expand this network, and provide residents and businesses with cable, phone and high-speed Internet services over fiber connections into homes and businesses.

BellSouth and Cox Communications, the local telephone and cable companies serving Lafayette, have strongly opposed the utility system’s plan. Last month, the service providers filed a lawsuit against the LUS, alleging that it was using a portion of state bond law that contained no provision for citizens to call for a public election.

Not like deploying wireless, apparently. See The Philadelphia Experiment and Municipal Wireless Proposals Beyond Philadelphia

Also, see Glenn Fleishman’s discussion of what it might have meant if this same argument had been applied to electricity in the past: Imagine Electricity [via Scott Rosenberg]

Groklaw Offers A Message On S/W Patents For The EU

Jumping off from this Financial Times article, Futures exchanges brace for patent suits [pdf], Groklaw goes into the gory details:

In Europe, patent litigation in the futures industry is a much rarer phenomenon because it is harder to patent software inventions. But the TT case is threatening to change that. In London this week, lawyers from Clifford Chance briefed a roomful of traders and other futures industry participants on the state of affairs and what they might need to do to defend themselves.

Vanessa Marsland, a Clifford Chance partner in the intellectual property practice, said: “In the US, patent damages can be substantial.”

She added: “Independent software vendors may have to reconsider the way they do business, and in particular the way they roll out new software to customers.”

TT has proposed to the four main futures exchanges — two in Chicago, plus Euronext.Liffe and Eurex — that it should be paid a fee for not starting patent infringement cases against them.

Copyright, First Amendment and Culture Protest

The Controversy Over Politically-Motivated “Million Dollar Baby” Spoilers

Copyright law is the main way our society protects the market for the sale and purchase of creative works such as novels, music, and movies. It aims to ensure that that market can flourish so that creators, and the companies that distribute their work, can reap the profit from their labor. It thus provides an incentive for creators to produce more.

But copyright law makes an exception for “fair use” – even though fair use can destroy the market for a creative work, and thus, in a sense, defeat the purpose of the work’s copyright. An example of a “fair use” would be incorporating limited quotations from a book in a book review. Such quotation is a permissible “fair use” even if the review savages the book and makes sales plummet.

In addition, a devastating parody may well serve its purpose of making the original work look ridiculous – and thus killing the market for that work – yet still be “fair use.” Justice Souter made this point memorably in his opinion in Campbell v. Acuff-Rose Music, Inc., in which he mounted a strong defense of the right to parody.

[…] In short, while spoilers and reviews may both be fair uses, all fair uses are not created alike: Some are pro-First Amendment, helping us choose what to see and read, and some are anti-First Amendment, forcing us to limit our choices by deceptively spoiling certain options against our will.

So commentators who say they are pro-First Amendment, especially, ought to think twice before offering a spoiler without a prior spoiler warning. They wouldn’t forcibly pull viewers out of ticket lines for “Million Dollar Baby,” but in using spoilers aggressively, they also employ a form of coercion.

Ruining others’ viewing or reading experiences ought not to be a weapon in the arsenal of someone who is truly pro-First Amendment.

Some TV I Missed

War Is H-E-Double-Toothpicks

After watching the 90 grueling minutes of A Company of Soldiers, it’s hard to believe that anyone would be more concerned with what the members of Dog Company in South Baghdad are saying than with what’s actually happening to them. After watching the show, I spoke to David Fanning, Frontline‘s executive producer, about PBS’s decision to reverse their usual policy of airing potentially offensive material on the nationwide “hard feed,” while making a sanitized version available on demand to those local markets that preferred it. Last night, the default version of A Company of Soldiers—the one available on 300 out of the 350 PBS stations nationwide—was the expurgated one. But though Fanning sent out a memo last week protesting PBS’s decision and stating that “this is the moment for public television to stand firm and broadcast ‘A Company of Soldiers’ intact,” he says he understands the network’s plight as well.

[…] Bill Reed, the manager of KCPT, a PBS station in Kansas City that chose to run the program unedited in its original time slot and risk the fine, has compared the current broadcasting climate to the Red Scare of the 1950s: “You have to go back to the McCarthy era to get a feel for how far this has gone.” When I asked Fanning if that was overstating the case, he grew thoughtful, saying, “A comparison is valid in that a minority of people have brought their values to bear on public standards.” But Fanning was most worried about the intangible muzzling effect that the current climate of fear will have on producers of future shows, who are more likely to censor themselves in terms of program content. He cited a well-known 1985 episode of Frontline, Memory of the the Camps, which included never-before-seen footage from the liberation of German concentration camps in 1945. If that documentary were to air today, could images of nude prisoners fall under the FCC prohibition against “obscene, profane and indecent broadcasts”?

I asked Fanning if there was anything else viewers should know about the FCC’s increasingly long shadow on the broadcast television landscape. He stressed the anachronistic quality of the commission itself: “We’re trapped in an old structure here, of the regulation of broadcasting vs. the unregulatedness of cable.”

Warning! Dangerous Metaphor!

The media industries keep trying to turn the Internet into TV — this kind of presentation helps to set the frame for the discussion. The content of the article is grist for those who want to turn the Internet into TV; an idea to be fought however it raises its head: The Internet: It’s the New TV

Television has long been a favorite way to pass time. But an annual survey by Jupiter Research showed that last year American adults spent as many hours a week in front of another screen – their computer’s.

The survey of 2,231 people found that consumers spent an average of 10 hours a week on the Internet in 2004, the same amount as the year before. TV watching declined to 10 hours a week, however, from 11 in 2003.

Limits To Liability in Privacy

Breach Points Up Flaws in Privacy Laws

But whatever the specific legal fallout of the ChoicePoint breach, the bigger effect may be its exposure of the patchwork of sometimes conflicting state and federal rules that govern consumer privacy and commercial data vendors. In recent days, state and federal regulators and lawmakers have started calling for an updating of those rules, which never envisioned the current power of data gatherers to amass and distribute vast digital dossiers on ordinary citizens.

[…] Critics say the current laws, in focusing too closely on industry-specific uses of information, like credit reports or medical data, rather than on protecting the privacy of the individuals in the databases, have failed to keep pace with the emergence of such data miners.

[…] Like the name ChoicePoint itself, the sheer size and scope of what data brokers are able to offer clients may be unknown to many of the ordinary consumers whose information they buy and sell. It is only in the last decade or so that boutique services like credit reporting agencies, which once catered solely to specific clients like banks or potential employers, have given way to giant, one-stop shops like ChoicePoint where all sorts of ostensibly qualified parties are able to purchase consumer information.

See also Wired News’ ID Theft Victims Could Lose Twice and Infoworld’s ChoicePoint’s error sparks talk of ID theft law

Later: This Reuters article – Lawmakers Promise Action on Identity Theft [pdf] (CNet version); Wired News: California Woman Sues ChoicePoint

Even later: picking a new target, Westlaw – Senator Says Data Service Has Lax Rules for Security; Databases Called Invitations to ID Theft [pdf]

Even later: ‘Perfect storm’ for new privacy laws?