Much Ado About Nothing – Google & Verizon’s Network Neutrality Proposal

12th
Aug. × ’10
By Kevin A. Thompson

I’ve been closely following the Network Neutrality debate for years, and while I am pleased that Google and Verizon have brought the discussion to the forefront in recent days, there has been too much outrage in my humble opinion. Certain facts remain after careful analysis of the joint policy proposal.

Fact 1 – it’s a proposal, not a bill actually winding its way through congress.

Fact 2 – it’s a compromise, as Google admits in its recent post discussing the lack of wireless regulation:

MYTH: This proposal would eliminate network neutrality over wireless.

FACT: It’s true that Google previously has advocated for certain openness safeguards to be applied in a similar fashion to what would be applied to wireline services. However, in the spirit of compromise, we have agreed to a proposal that allows this market to remain free from regulation for now, while Congress keeps a watchful eye.

Why? First, the wireless market is more competitive than the wireline market, given that consumers typically have more than just two providers to choose from. Second, because wireless networks employ airwaves, rather than wires, and share constrained capacity among many users, these carriers need to manage their networks more actively. Third, network and device openness is now beginning to take off as a significant business model in this space.

In our proposal, we agreed that the best first step is for wireless providers to be fully transparent with users about how network traffic is managed to avoid congestion, or prioritized for certain applications and content. Our proposal also asks the Federal government to monitor and report regularly on the state of the wireless broadband market. Importantly, Congress would always have the ability to step in and impose new safeguards on wireless broadband providers to protect consumers’ interests.

It’s also important to keep in mind that the future of wireless broadband increasingly will be found in the advanced, 4th generation (4G) networks now being constructed. Verizon will begin rolling out its 4G network this fall under openness license conditions that Google helped persuade the FCC to adopt. Clearwire is already providing 4G service in some markets, operating under a unique wholesale/openness business model. So consumers across the country are beginning to experience open Internet wireless platforms, which we hope will be enhanced and encouraged by our transparency proposal.

Fact 3 – It was announced shortly after the FCC announced that its closed door meetings with stakeholders had ended, which likely means this proposal is one which had been floated, and rejected, in these closed door meetings.

Still, after much ado about nothing, for a careful analysis I can recommend this post by Nilay Patel.

Let’s see where this debate over this proposal leads us, hopefully to a real plan.

Posted in Internet Governance, Musings | 1 Comment

Guest on This Week in Law #72

12th
Aug. × ’10
By Kevin A. Thompson

I was pleased to be asked back on Denise Howell‘s excellent show, This Week In Law.

The other guests were Alex Macgillivray and Jonathan Bailey.

To download Episode 72 in either audio or video formats please follow the link here, or search for the show in iTunes. Or watch it on YouTube.

Posted in Audio, Speaking, Video | 1 Comment

FTC v. Trudeau – Are Emails Within a Judge’s “Presence”?

29th
May. × ’10
By Kevin A. Thompson

The recent 7th Circuit opinion in FTC v. Trudeau, No. 10-1383, slip op. (7th Cir. May 20, 2010), raised an interesting cyberlaw issue as a minor point within the larger issue of criminal contempt of court: Just because the Judge receives an email, does that mean the email, as well as the conduct in inciting the email to be sent, is within the Judge’s presence? The 7th Circuit ruled no, because the entirety of the conduct was not in his presence.

As background, in Federal court Judges can summarily hold people to be in criminal contempt of court if their conduct causes an obstruction of justice. If all of the facts required to make this determination are known to the Judge because they occur in his presence, then the Judge can summarily hold a person in contempt. This summary procedure is a great power, and is needed to allow Judges to control what occurs in their courtroom. But, as the 7th Circuit points out, it is a limited power in order to prevent abuse. If additional facts are needed, a more formal evidentiary proceeding is required under 18 U.S.C. §401 and Fed. R. Crim. P. §42(a). This evidentiary proceeding can also encompass conduct that is outside the Judge’s immediate presence but “so near thereto” as to still obstruct justice.

To summarize the basic facts, Defendant Trudeau was before Judge Holderman here in the Northern District of Illinois in an underlying case for civil contempt of court. Trudeau went on his radio show and urged his followers/supporters/listeners to send emails directly to Judge Holderman’s private email address in support of his case. Trudeau also posted an audio excerpt of this show to his website, then sent an email blast to his mailing list urging people to send emails to the Judge. Judge Holderman was concerned as a matter of courtroom security when he suddenly began getting hundreds of emails on his private email address. He was eventually able to determine that Trudeau was to blame, but it took a while for him and his staff to do so. To cut a long story short, he summarily found Trudeau in contempt of court for this behavior because the emails occurred in his presence, then one week later imposed a 30-day sentence.

The 7th Circuit reversed this finding, holding that this procedure was not appropriate because all of the facts did not occur in the Judge’s presence. Instead of the summary procedure, a more formal hearing should have been held. Judge Holderman was able to learn what he needed to know, but the entirety of the conduct did not occur in his presence. It was not enough that the effect of the conduct (the email) was felt in his presence, he and his staff had to take additional steps to confirm it was Trudeau to blame. The radio show itself was not in his presence. Neither was the posting to Trudeau’s website or the mailing to the list.

The case was remanded for further proceedings, so there is still an opportunity for a formal hearing to be held about this conduct, at Judge Holderman’s discretion.

Posted in Cases | 1 Comment

Towel Day Tweetup – May 25, 2010

21st
May. × ’10
By Kevin A. Thompson

I’m not organizing it, per se, but I promised Ed (pictured below with his towel), to post information about the Tweetup/Blogger Meetup on Tuesday, May 25th, 2010.

May 25th is Towel Day every year, in honor of Douglas Adams, so please bring your towels to:

Aria Bar, at the Fairmont Chicago hotel
200 North Columbus Drive
Chicago, IL 60601

View Larger Map

We start at 6 PM.

Hosts are @blawgreview and @insidecounsel. More information on the meetup is here. The hope is that some people attending the SuperConference will like to stop down and meet some of the best legal minds. And, we get to be social with social media!

Those who have indicated they are coming are:

@adriandayton – Adrian Dayton
@amyderby – Amy Derby
@Chris_McGeehan – Chris McGeehan
@CW_Schneider – Chris Schneider
@cyberlaw – Kevin Thompson (that’s me!)
@dgulbran – Dave! Gulbransen
@econwriter5 – Gwynne Monahan
@internetcases – Evan Brown
@JeremyKissel – Jeremy Kissel
@Kashhill – Kashmir Hill
@Molly_McDonough – Molly McDonough
@pzura – Peter Zura
@rdd – R. David Donoghue
@scottgreenfield – Scott Greenfield
@windypundit – Windy Pundit – Mark Draughn

If you are coming, and are not on this list, please direct message or @reply me on Twitter.

Ed Post
Dave! Gulbransen
Kevin Thompson

Posted in Blawg Review, General, Speaking, Twitter | 4 Comments

Are Open Source Toyotas Neutrally Networked?

18th
May. × ’10
By Kevin A. Thompson

I was pleased to be asked back on the This Week In Law podcast for Episode #60, entitled “Open Source Toyotas.” Here’s a link to the audio – http://www.twit.tv/twil60. Video is available on Blip.

Denise Howell is the host, and guests are myself, Marty Schwimmer, and Xeni Jardin.  It was fun!

Also, I was pleased to speak today to the Chicago Bar Association‘s Cyber Law and Data Privacy Committee regarding Network Neutrality along with my friend Evan Brown.  Thanks to Chris McGeehan for the invitation.

Posted in Audio, Speaking, Video | 6 Comments

Guest on This Week In Law Podcast #59

11th
May. × ’10
By Kevin A. Thompson

I was pleased to be asked to participate in the This Week In Law Podcast, Episode #59. The episode is entitled “Praying at the Bar.”

The hosts were Denise Howell and Evan Brown, and my co-guest was Marty Schwimmer. It was quite a panel!

This Week In Law - Episode 59

For the audio and the show notes: http://twit.tv/twil59

For the video: http://blip.tv/file/3595192/

Posted in Audio, Speaking, Video | 1 Comment

Towel Day is May 25th, every year!

5th
May. × ’10
By Kevin A. Thompson

Legal bloggers, where are your towels?

Last year on Towel Day, I hosted Blawg Review #213. This year, I’ll be participating in a blogger meetup for those attending the SuperConference here in Chicago. For details, see the post here, or follow me on Twitter – @cyberlaw.

For more on other Towel Day activities, check out Towelday.org. Towel Day is held in honor of Douglas Adams, the author of The Hitchhikers Guide to the Galaxy and other great works. Douglas suffered a permanent existence failure in 2001, and so we carry a towel in his memory. Why a towel? Because they’re so useful!
As the Guide itself says –

“A towel, it says, is about the most massively useful thing an interstellar hitchhiker can have. Partly it has great practical value. You can wrap it around you for warmth as you bound across the cold moons of Jaglan Beta; you can lie on it on the brilliant marble-sanded beaches of Santraginus V, inhaling the heady sea vapors; you can sleep under it beneath the stars which shine so redly on the desert world of Kakrafoon; use it to sail a miniraft down the slow heavy River Moth; wet it for use in hand-to-hand-combat; wrap it round your head to ward off noxious fumes or avoid the gaze of the Ravenous Bugblatter Beast of Traal (such a mind-boggingly stupid animal, it assumes that if you can’t see it, it can’t see you); you can wave your towel in emergencies as a distress signal, and of course dry yourself off with it if it still seems to be clean enough.”

Posted in Blawg Review, General | 3 Comments

Awarding of Attorneys Fees for Copyright Cases Not Automatic

12th
Apr. × ’10
By Kevin A. Thompson

In addition to their costs, the prevailing party in a copyright case may also seek recovery of their attorneys fees, provided that the requirements of the Act are otherwise met. See 17 U.S.C. Section 505, which provides as follows:

§ 505. Remedies for infringement: Costs and attorney’s fees

In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.

This grant of attorneys fees is not automatic, instead a court must determine whether the grant of fees is reasonable.

In the recent case of UMG Recordings, Inc. v. Veoh, 2010 WL 1407316 (C.D.Cal., April 6, 2010), the video sharing site Veoh sought recovery of its attorneys fees after it had prevailed in its defense of the copyright claims brought by the copyright owners UMG. Veoh had been granted partial summary judgment on the grounds of its meeting all the requirements for 512(c) safe harbor immunity. Despite prevailing, in this recent ruling the Court held that Veoh was not entitled to the recovery of its fees because Veoh could not prove that “UMG’s legal challenge was improper, in bad faith, or contrary to the purposes of the Copyright Act.”

Here’s the important section discussing this holding from this short opinion:

Giving full consideration to the purposes of the Copyright Act, the Court concludes that Veoh is not entitled to recover attorneys’ fees. “[T]here is typically no award of fees in cases involving issues of first impression or advancing claims that were neither frivolous nor objectively unreasonable.” 4 Nimmer on Copyright § 14.10. Both Veoh and UMG advanced positions that were neither frivolous nor objectively unreasonable.

I understand that Veoh was recently acquired by Qlipso.

Posted in Cases, Copyright | 3 Comments

Standing under the CAN-SPAM Act

2nd
Apr. × ’10
By Kevin A. Thompson

The CAN-SPAM Act (15 U.S.C. 7701, et seq.) provides a private cause of action for providers of an Internet access service to use against spammers, in addition to the enforcement of the Act by the FTC, states, and other government entities.

In order to have standing to bring a case, however, a private plaintiff must first prove that he or she is the provider of an internet access service, and must have been adversely affected by a violation of the Act. An Internet access service is defined in Section 7702(11) and 47 U.S.C. 231(e)(4) as “a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers. Such term does not include telecommunications services.”

A recent decision of the District Court of the Western District of Washington, Haselton v. Quicken Loans, Inc, (2010 WL 1180353, March 23, 2010) is informative on this issue. Plaintiff Haselton hosts hosts websites and provides programs that allow Internet users to circmumvent Internet blocking software and access blocked Internet content. The decision does not elaborate greatly on the Defendants’ business, but suffice it to say it involves sending unsolicited email messages.

The court relied on a 9th Circuit decision from 2009 (Gordon v. Virtumundo, Inc., 575 F.3d 1040, 9th Cir. 2009) which also dealt with the standing issue. The Act is intended to provide only a limited cause of action to a limited array of potential plaintiffs.

In Gordon, the Plaintiff did not control the hardware and relied on a third party for his internet access. Further, Gordon had purposefully avoided using even minimal efforts to reduce the level of spam messages. In this case, the Court found that Haselton had only a “nominal role” in providing Internet access services, and further made no effort to prevent the reception of spam emails. So, this Court held Haselton was not the provider of a bona fide Internet access service.

The Court also held that Haselton did not have standing because he was not adversely affected by a violation of the Act. While Haselton claimed reduced system performance and increased server costs, the fact that he had not taken any effort to implement a spam filter cut against any such complaints. As a result, the Court entered partial summary judgment for Defendants on the issue of the CAN-SPAM act due to this lack of standing. I understand that Plaintiff’s claims under Washington state law will still proceed.

Posted in CAN-SPAM, Cases | 2 Comments

ABA Techshow 2010 – Roundup of Paperless Office Sessions

31st
Mar. × ’10
By Kevin A. Thompson

I’ll be presenting my thoughts on ABA Techshow 2010 to my CBA Law Practice Management and Technology committee on April 9, 2010 along with our other members who also attended Techshow, but I wanted to also post some of them here. I spent Day 1 in the “Paperless Practice” track, and most were really good sessions. I learned a lot about how better to implement a system for using less paper in my practice. I’ll certainly look into some of the tech and software recommendations.

    Scanning and Paper Reduction in the Law Office 101


The first session, with speakers Nancy Duhon and Michael Morse, was a great introduction to how to implement a paperless system in a real law practice. Michael has a thriving PI practice in Michigan, and his firm does not accept paper copies of accident reports, medical records, etc., if they can help it. Those they have to accept are scanned and shredded, or in certain cases the originals are returned to the client. Lots of good tips and tricks came from this session. You need a good way to get paper into your system, a good backup system, and a good way to get what you need back out of the system.

    Document Management Software: The Electronic File Butler


This was the weakest session for me, but not due to the speakers. Steve Best and Richard Serpe did a great job keeping our interest, but I thought the topic could have been condensed down to about 6 minutes. Yes – “DMS software really works to help you search, and you need to force compliance with using it.” Enough said. One great thing about Techshow is the openness of the speakers and the exhibitors – I met the President of Worldox, Ray Zweifelhofer, at a reception and we had a nice chat about his company’s software. I know it’s a popular package, and with good people like that at the helm it’s bound to stay popular.

    Digital Workflow – Developing the Paperless Habit


This was easily the best session of the track. Nerino Petro and Ernie Svenson (Ernie the Attorney) did a fantastic job expanding on the insights from the first session with more practical tips and real-life examples. I forgot which one of them said it, but I still remember the line “Friends don’t let friends print emails.” If it’s digital, keep it digital. If it’s not digital, get it digital and get rid of the paper. I’ve gotten to know Nerino over the years attending Techshow, and his sessions are always interesting and informative. Ernie is also quite down to earth and a very good speaker. If you don’t already follow his separate “PDF For Lawyers” blog, I strongly suggest you subscribe.

    Paperless Law Office Library: Research and Forms


Donna Neff and Paul Unger finished the day with another strong session. Good tips on creating and storing usable forms and research libraries were shared. Donna has developed a system for the storage of electronic files without the use of a document management software package that was introduced in this session but expanded on in another session on Friday. With a good system in place to scan incoming paper, and a way to get what you need out of the system again, a lawyer has little need to keep lots of paper.

I always enjoy Techshow, which is why I’ve gone more years than not since 2006. I think last year (2009) was the only year since then I haven’t gone through the CLE sessions. I am looking forward to Techshow 2011!

Posted in Musings, Practice Tips, Techshow | 3 Comments

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