Wired News: Will Cable Quell the Competition?
During oral arguments Tuesday, several justices probed in detail into the supposed logic of the two regulatory classifications, often questioning why cable operators should be treated differently than telcos.
“The question is whether you’re still offering a telecommunications service to the public,” said Justice Antonin Scalia.
Thomas Hungar, deputy solicitor general in the U.S. Justice Department, cited the different regulatory histories for cable operators and telcos, and pointed out that phone companies — unlike cable operators — offer telecommunications services on a stand-alone basis.
NCTA’s lawyer, Paul Cappuccio, argued that cable-modem service involves both telecommunications and data services in a bundled offering, which in turn makes it a “separate product” worthy of its own classification.
“We view it as two ingredients forming a product that is a distinct product,” he said, arguing that the court should defer to the FCC on such definitional matters.
Brand X’s attorney, Thomas Goldstein, said the cable industry’s argument “becomes completely circular” if taken to its logical conclusion: Any bundled service can therefore be classified as something different by virtue of its bundled nature.
He said that under such logic, retailers could circumvent laws against selling cigarettes to minors by simply bundling cigarettes with other products and calling it a “smoking service.”
Furthermore, Goldstein said such reasoning allows companies to bundle offerings in an effort to “self-deregulate.”
An ex-FCC advisor looks to the future of network development: Is an ‘open’ Internet a doomed concept?
Most openness mandates, by themselves, don’t ensure that consumers get the bulk of the benefit created as more devices, content and applications make broadband networks more valuable.
The last thing the broadband world needs is more regulation.
Rather, these mandates shift the benefit from the companies building networks to companies that develop the devices, content and applications.
To reduce the risk that Congress or the FCC will pick winners and losers in this manner, network owners would do well to offer their own voluntary commitments to preserve consumers’ freedom to choose the devices, content and applications. In early 2004, former FCC Chairman Powell challenged them to do as much.
Because voluntary approaches can remain agnostic as to which companies benefit most as broadband networks grow in value, they offer the prospect of preserving openness while also preserving critical incentives to invest in broadband infrastructure.
MGM’s rebuttal opened with a real howler, and I am a little surprised that none of the Justices interrupted their lawyer to challenge it, but he was speaking pretty quickly and forcefully, so I guess they were inclined to let him sum up. Addressing the relief MGM was seeking, their lawyer said: Grokster is a machine built upon inducing infringement and we are entitled to an injunction shutting it down. The obvious rejoinder, based on the lower courts’ express findings in the case, is that an injunction can’t shut down Grokster, the network, because it exists completely apart from Grokster, the company. If this was an attempt at some sleight of hand with the technologically unsophisticated judges, I don’t see it going anywhere, because the questioning of both sides seemed to reflect that the Justices have a hearteningly clear grasp of what the software does and doesn’t do. MGM also argued that the Ninth Circuit’s decision was itself chilling technological innovation, although they defined “innovation” as innovation authorized by copyright holders. MGM closed with its pity-the-starving-artists line, complaining about the lost revenues from hypothesized sales it says would have occurred absent file-sharing.
See also this CNet-hosted photo gallery
Some interesting notes from an early invitee: Looking around Yahoo! 360
More worrisome, however, is the RSS feed. I took a look at it was a bit annoyed by the URL structure for it but that was the least of my worries. When I looked inside is when I made the decision that I would never use the 360 blog for anything serious. My reason was in the code of the RSS feed where the following appeared:
Copyright 2005, Yahoo!
The number of people listening to BBC radio shows on the internet has grown by a quarter in the past month.
Online demands to hear radio programmes passed nine million in February – up more than 25% on the previous month.
The show which is most requested is Radio 4’s long-running soap opera The Archers, with Chris Moyles’ Radio 1 breakfast show in second spot.
Online listening to digital-only networks, such as 6 Music, has soared by 83% in the last year.
A man who lives out of state while working by computer must pay New York tax on his full income, the state’s highest court ruled Tuesday in a case that could have wide implications for the growing practice of telecommuting.
The Court of Appeals said computer programmer Thomas Huckaby, who lives in Nashville, Tenn., owed New York income tax for his full salary, not just the time he spent working at his employer’s New York offices.
[…] Huckaby’s attorney, Peter Faber, said the case is the first of its kind involving the income tax liability of a telecommuter. He said he may appeal to the U.S. Supreme Court because most states base income tax liability on the residence of the taxpayer.
“To say a person’s taxability depends on where his employer is wrong,” Faber said.
But Marc Violette, spokesman for state Assistant Solicitor General Julie Mereson, said: “New York provides the job, New York provides the professional opportunity, and New York should be able to tax that income, even if the employee for his own convenience was working outside of New York state.”
Later: NYTimes’ Telecommuters Not Exempt From New York Tax
In their questions, the justices were critical of the entertainment industry’s proposal, which would hold companies “predominantly” supported by piracy liable for copyright infringement. However, they showed little sympathy for the file-swapping companies’ business model.
“What you are suggesting is unlawful expropriation of property as a kind of start-up capital,” said Justice Anthony Kennedy. “From an economic standpoint and legal standpoint, that sounds wrong.”
Also: learn about what it is to wait in line to get into a hot Supreme Court session from these links at BoingBoing
Justice Stephen G. Breyer said the same software that can be used to steal copyrighted materials offered at least conceptually “some really excellent uses” that are legal.
Justice Antonin Scalia maintained that a ruling for entertainment companies could mean that if “I’m a new inventor, I’m going to get sued right away.”
While seeming leery of allowing lawsuits, the court also appeared deeply troubled by efforts of the companies that manufacture so-called file-sharing software to encourage Internet piracy and profit from it.
Slashdot: Supreme Court Takes Hard Look at P2P
Missed the (wholly unbiased <G>) LATimes editorial this morning: California’s Civil War
None of this is to say that peer-to-peer systems like Grokster and Morpheus aren’t allowing consumers to shoplift digitally, victimizing creative artists and their corporate distributors. But there are plenty of non- infringing uses for file-sharing systems, and the justices today will probably quibble about how much legitimate copying is enough to save the likes of Grokster.
Wired News’ File Sharing Has Supreme Moment
In a letter this month, a lawyer for James Reston Jr., author of “Warriors of God: Richard the Lionheart and Saladin in the Third Crusade,” accused the studio of violating American and international copyright law by using “events, characters, scenes, descriptions and character tensions” in the film that were “strikingly similar” to his narrative history.
A lawyer for the studio responded last week with a five-page rebuttal that said the creators of “Kingdom of Heaven,” to be released on May 6, had never read Mr. Reston’s book. The letter added: “The works are not substantially similar. In fact they are completely dissimilar, other than having in common some elements that are historically authentic.”
But Mr. Reston’s lawyer, Timothy DeBaets, said his client would decide this week whether to pursue a lawsuit, since he was convinced that his painstaking work over three years – including research in original sources in the Library of Congress and several Arab countries – had been lifted by the screenwriter William Monahan, who was hired by Mr. Scott.
“The key thing in the letter is, they say no one read it,” Mr. DeBaets said. “We don’t believe that, and we have evidence to the contrary. I think they read Jim’s book and took material from there, and after the fact it’s easy to run around and find stuff, since it’s history.”
[…] Michael J. Plonsker, a lawyer with the Los Angeles firm Alschuler Grossman Stein & Kahan who litigates such cases, said winning them was difficult but not impossible.
“History is not copyrightable,” Mr. Plonsker said. “But if the manner in which you tell about a historical event is a particular expression of character or sequence of events, that is copyrightable. If you can show that the defendant had access and that the works are substantially similar, which is the legal standard, then you can win.”
What eBay did for buying and selling, Britain’s Zopa hopes to do for lending and borrowing money.
Zopa, which counts Benchmark Capital, the same firm that funded eBay, among its backers, is taking a variant of the auction site’s business model and applying it to put people who want to lend in touch with credit-worthy people who want to borrow.
“For the first time, people who want to lend or borrow money have a real alternative to going to a bank, financial institution or big corporation,” said James Alexander, Zopa’s chief technical officer. According to Alexander, Zopa is not a bank, but an online exchange that gives lenders access to credit-worthy borrowers.