Net neutrality has quickly become a hot-button topic in online tech media (and increasingly in mainstream media) -- and for good reason. In an era defined by free information exchange via the wide open, largely unregulated internet, the concept of federal bodies in the United States stepping in on behalf of monied interests and redefining the way users, businesses, and information all interact is a grim and severe issue for the new world economy. On the internet everyone's presence and business is (and should be) equal; currently protecting that kind of equality is the FCC, some flimsy policy statements, and a smattering of senators who've yet to lock anything down. Read on to better understand net neutrality, and why we may not have it in the future.

Legal analysis by Neal Hannan, Seth Kertzer, and Zach Sharpe, and edited by Trevor Adler, law student members of the Columbia Science & Technology Law Review.

Intro

The issue of net neutrality (i.e. internet or network neutrality) is essentially a battle over how much control internet providers should have in deciding whether to give preferences to different sites and online applications. The battle lines are drawn over whether ISPs should have the right to exact direct control over the content and data flowing across their networks. For example, should Verizon Online DSL charge Google extra money to ensure that YouTube videos will download faster than, say, Revver videos? Or should Verizon be able to decide that YouTube is taking up too many resources on its network and make it run slower, or block it entirely?

Network neutrality advocates say that the internet should treat all information more or less equally, and that favoring some content, sites, or applications over others would take control from the users and force them to patronize only that which is favored by the ISPs and network operators -- presumably only the internet businesses with the most money to spend on this new kind of carriage deal. Opponents of network neutrality argue that because service providers are in a competitive industry, they have plenty of incentives to provide the best service possible, and that the government should let market forces dictate the results of network regulation.

In 2005, the FCC raised eyebrows when it investigated a small broadband provider, Madison River Communications, that had blocked access to Vonage's VoIP application. The matter ended when the provider agreed to unblock Vonage and pay a fine (more on this case later). Some argue that the source of the FCC's power to regulate net neutrality is based on the Supreme Court's 1997 decision allowing the agency to enforce "must-carry" regulations, which required cable companies to include local channels in their lineup. However, the reason net neutrality is such a contestable topic is because courts have not yet directly ruled on the jurisdiction of the FCC to enforce it.

Legal analysis by Sarah Calvert, Jason McInnes, and Scott McMillan, and edited by Trevor Adler and Jonathan Coronel, law student members of the Columbia Science & Technology Law Review.

We know there's a lot of Cisco-said-Jobs-said going on right now with iPhone vs. iPhone, so we turned the mic over to our wonderful crew at The Columbia Science & Technology Law Review to spell it out for us. Part one might be of interest to you entrepreneurial types out there -- we're gonna get down and dirty with trademark law, and how a trademark functions in the US. In part two we'll get into the legal issues facing Apple, possible consequences and outcomes, and whether or not "iPhone" really even is defensible. -Ed.


We're all pretty well familiar with the term trademark, and what it represents: a unique "mark" used to identify a product's source, and to distinguish the product from goods made by others. But before we can get into iPhone vs. iPhone (in part 2), we have to dot our Is and cross our Ts, so to speak, when it comes to the finer points of trademark law. More specifically, a trademark can range from something simple, like a word or symbol, to something more abstract, like a sound, fragrance, or color¹; trademarkable products can include material goods (like Coca-Cola), services (like Engadget), and their corresponding images and appearances.² Read on.

Legal analysis courtesy of Scott McMillan, Zachary Sharpe, and Trevor Adler of The Columbia Science and Technology Law Review.


The press and blogosphere have recently been abuzz over programs that remove copyright protections technologies known as Digital Rights Management (DRM) from purchased or rented media files. These DRMs restrict a consumer's use of the media – morality notwithstanding, they are the only thing preventing you from copying your music or video files onto all of your friends' computers. DRM-stripping programs remove such restrictions from the file (and typically violate your terms of service agreement, to say the least). In September, Microsoft filed suit against the hacker(s) responsible for one such DRM-stripping program, FairUse4WM, purportedly created by the now notorious Viodentia. Other such programs reportedly target the DRM protections of the iTunes Music Store and AllOfMP3, among others. What will become of Microsoft's lawsuit? What does this have to do with "fair use" and the Digital Millennium Copyright Act (DMCA)? What follows is a brief overview in two parts. In the first, we'll discuss current issues surrounding fair use with regard to the DMCA, and in the second we'll approach Microsoft's legal actions against Viodentia for FairUse4WM.

What fair use is, and how it works alongside the DMCA

"Fair use" is a doctrine under US copyright law that permits certain acts that might otherwise be considered copyright infringement. Copyright law gives authors the right to exclude others from their work, and can sometimes get in the way of the ultimate goal of copyright, which is to promote progress in art and science. The theory here is that without copyright protections, many artists and authors would be discouraged from distributing their work. The fair use exception allows copyright protections to remain in place while enabling consumers some degree of freedom in their use of purchased media. For example, it was generally understood that ripping CDs for personal use was legal because it fell under the fair use exception. However, fair use was dealt a serious blow with the enactment of the DMCA in 1998 and the widespread use of DRM protections. Indeed, fair use is not a defense to a DMCA claim.

Legal analysis courtesy of Matt Dobbins and Zachary Sharpe, and Trevor Adler of The Columbia Science and Technology Law Review.

While our attention was diverted toward DigitalLife last week, it looks like TiVo was locking horns with the FCC behind the scenes over CableCARD deployment, the "integration ban" which led to CableCARD, and how Verizon's FiOS service might spoil everybody's fun. Since the subject matter is a little dense, we enlisted the help of The Columbia Science and Technology Law Review to make heads or tails of what's really at hand here. Running Engadget commentary will be posted in italics.


Background: the FCC's "integration ban"

The FCC's set-top box "integration ban" requires cable operators to deploy set-top boxes that meet certain criteria standards, separating proprietary encryption from basic decoding functions. More specifically, this regulation effectively forces cable operators to support CableCARD, a technology incorporated into digital TVs and DVRs (e.g., TiVo Series3) that makes such devices compatible with the cable operator's encryption scheme without a set-top box.

By separating decryption from other functions, the 'integration ban' facilitates the introduction of third-party devices that compete with and can eliminate the need for the set-top boxes leased or provided by the cable companies. As a practical matter, however, relatively few consumers have availed themselves of the CableCARD option (see ACA Comments, CSR-7012-Z, CS Docket No. 97-80). This may be due to the fact that cable companies require consumers to take special steps to acquire a CableCARD (and also because the technology is not yet incorporated into many consumer devices). The FCC, therefore, has promulgated C.F.R. 76.1204(a)(1), requiring cable operators to implement CableCARD technology into their set-top boxes, so that every box has a CableCARD slot and will need a CableCARD to operate. This eliminates the need for consumers to take any special action to obtain a CableCARD. As it should be!

Requests from cable operators to waive C.F.R. 76.1204(a)(1)

Verizon recently (late August, 2006) filed a request for the FCC to temporarily waive 47 C.F.R. 76.1204(a)(1) until an "interoperable, open downloadable conditional access ("DCAS") solution is developed and deployed," arguing that waiver is necessary to facilitate the introduction of Verizon's own FiOS TV service. Verizon argues that this DCAS solution would render CableCARDs obsolete, and making their current set-top boxes compatible with the CableCARDs would be a waste of money. By waiving the CableCARD requirement and speeding Verizon's implementation of its cable service, Verizon argues, the FCC will increase competition in the cable TV market, ultimately helping consumers. The FCC then sought comment on Verizon's request (FCC reference).