On June 24, 2010, the Media & Entertainment – USA newsletter published for the International Law Office (ILO) exclusively by Rimon, highlighted an article authored by Douglas J. Wood, Stacy K. Marcus and Anthony S. Traymore, entitled “Social Media in action in advertising and marketing (.PDF).” If you want to read or download the entire Social Media white paper released by Rimon’s Social Media Task Force, go to the Social & Digital Media White Paper section on Legal Bytes.
Yesterday, the federal court hearing the billion-dollar case brought by Viacom against YouTube and Google ruled in favor of Google and YouTube on a summary judgment motion, deciding that YouTube is protected against claims of copyright infringement by the safe harbor provisions of the Digital Millennium Copyright Act (the “DMCA”), since it promptly sought to comply with the DMCA by removing protected content when notified of it.
The federal court held that under the law, if service providers were required to try to determine what content is infringing, or if service providers were held liable because they know infringement is rampant in the industry, or that users routinely post infringing materials, it “would contravene the structure and operation of the DMCA.” Only Congress has the power to decide to alter or reallocate the burden of copyright protection from the rights holder (i.e., the copyright owner) to the service provider. In examining that question, the court stated that where such a huge volume of works are posted by others, the service provider “cannot by inspection determine whether the use has been licensed by the owner, or whether its posting” is a “fair use” of the material, or even whether its copyright owner or licensee objects to its posting. The DMCA is explicit: it shall not be construed to condition “safe harbor” protection on “a service provider monitoring its service or affirmatively seeking facts indicating infringing activity . . . .” Under the DMCA, if one has no notice of infringement and innocently publishes infringing content, until knowledge is shown – by “take down” notice or otherwise – a passive service provider platform would generally not be liable for intellectual property infringement.
It’s unlikely you have heard the end of this lawsuit. In a statement posted yesterday by Michael Fricklas, Viacom Executive Vice President, General Counsel & Secretary, Viacom noted that, “This case has always been about whether intentional theft of copyrighted works is permitted under existing law and we always knew that the critical underlying issue would need to be addressed by courts at the appellate levels. Today’s decision accelerates our opportunity to do so.”
You can read and download the court’s entire decision right here.
Last week, Legal Bytes announced Rimon’s new global initiative, Cloud Computing. With that announcement, the Task Force released the first three in a series of white papers entitled, “Transcending the Cloud: A Legal Guide to the Risks and Rewards of Cloud Computing.” We also promised to release “case studies” shortly after the white papers, to demonstrate how the insights in each paper have practical implications through case study examples.
Here is the first: A case study on government contracting, now attached to the white paper entitled, “The Risks and Rewards of a U.S. Federal Government Contractor Employing a Cloud Service Provider to Perform a Federal Government Contract,” authored by Lorraine Campos, Stephanie Giese and Joelle Laszlo. Contact them if you need to know more about this important area of cloud computing.
We will update each individual paper, as well as the compendium, as each paper, case study and update is released, so make sure you subscribe via email or get the Legal Bytes RSS Feed so you are always in touch with the latest information. Of course, if you ever have questions, you can always contact me Joseph I. (“Joe”) Rosenbaum, Adam Snukal, or any Rimon attorney with whom you regularly work.
This post was written by Judith L. Harris and Amy Mushahwar.
The Federal Communications Commission (“FCC”) has just voted to open a formal proceeding regarding how best to respond to the D.C. Circuit’s decision in Comcast v. FCC (see our previous blog post, FCC Caught by (not in) the Web). In the Comcast case, the court reversed an FCC decision finding that Comcast had violated the Commission’s non-discrimination principles by interfering with traffic from broadband subscribers using an online peer-to-peer file-sharing technology from BitTorrent. The appellate court ruled the Commission, under the FCC’s previous (Republican) Chairman Kevin Martin, had improperly stretched its ancillary jurisdiction pursuant to Title I of the Communications Act to enforce one of its net neutrality principles against an Internet services provider. Earlier, the Commission had classified Internet access as an information service, only subject to light-touch Title I regulation, rather than as a telecommunications service, subject to more extensive Title II regulation, traditionally applied to common carriers.
At stake, in the minds of many, is nothing less than the future of the Internet: whether it is to be free and open and, assuming so, who is best positioned to determine what that means. In the eyes of some, especially the large Internet service providers such as Comcast, Verizon Wireless and AT&T, a free and open Internet equates to a complete government hands-off approach. Investment and innovation has flourished under the prior deregulatory steps, they argue. Others, especially edge players, including content and application providers such as Google, Amazon.com and Apple, focus on increasing Internet facilities consolidation and vertical integration in the industry. They see the need for a “cop on the beat” and explicit (e.g., net neutrality) rules to insure that those who control the “pipes” don’t interfere with consumer choice and play favorites when it comes to content.
In the two months that have ensued since the Comcast decision, handed down only two weeks after the FCC’s release of the Congressionally mandated National Broadband Plan, the debate has raged as to whether, and if so, how, the FCC should proceed to exercise oversight over the activities of Internet service providers. Not surprisingly, the question of increasing significance is where the FCC might turn for the power it needs to implement many of the recommendations contained in the National Broadband Plan. Everyone, it seems, has weighed in, from all branches of government (the White House, Congress and all the Commissioners at the FCC), to all of the private stakeholders, trade associations, coalitions that have come into existence to lobby the issue, media, academics, and Wall Street analysts (witnessing the recent volatility of ISP stocks).
Yesterday’s action by the FCC finally gets the ball really rolling. While Congress has threatened legislation (in both directions) and a court challenge is inevitable no matter where the Commission ends up, the FCC’s 3-2 decision opening this new proceeding is a necessary first step in breaking the current logjam.
The Notice of this new action is worded in neutral terms and presents three alternative solutions to the Commission’s current dilemma. The Notice also seeks other ideas from the public. However, FCC Chairman Julius Genachowski has made no secret of the course he prefers. In the aftermath of the Comcast ruling, he outlined what he dubbed a “third way,” (the third option, obviously not accidentally, in yesterday’s Notice). His approach, he believes, represents a middle road between continuing to limp along regulating ISPs under Title I, despite the limited power that would afford the FCC to implement some aspects of the National Broadband Plan, and simply reclassifying broadband as a telecommunications service under Title II, with the potential that would introduce for heavy-handed regulation – such things as oversight of rates and the imposition of interconnection and unbundling obligations. This “third way” envisioned by Chairman Genowchowski, WOULD involve Title II reclassification, but would also include explicit forbearance from use of those powers most feared by telcos and cable companies.
One thing is clear: it’s going to be a long, hot summer in Washington. The Chairman is determined to keep the proceeding moving (perhaps in part to encourage industry and public/private working groups that have already sprouted to come up with a negotiated solution). Comments from the public are due July 15, 2010, less than 30 days from now, with reply comments due August 12, 2010. An Order by the Commission is expected before year-end (and the start of a new Congress), with a decision possible as early as October. The effect of the outcome of the midterm elections and, before then, the tremendous amounts of money the upcoming election will infuse into the system from all of the stakeholders, create wildcards. The stakes are high; the decisions are likely to affect the shape of the Internet for a very long time.
Whether you want more information or need help filing comments with the FCC, look no further than our own Judith L. Harris and Amy Mushahwar in our D.C. office – authorities in the area. Of course, you can always call me, Joseph I. Rosenbaum, or any Rimon attorney with whom you regularly work.
For those of you who have wondered why Legal Bytes has been so quiet recently, it’s because I, and my colleague Adam Snukal, have been hard at work coordinating and putting together a new initiative – Cloud Computing.
Today, we are proud to announce the launch of a new Rimon initiative focusing on Cloud Computing and showcased with our new series of white papers entitled, “Transcending the Cloud: A Legal Guide to the Risks and Rewards of Cloud Computing.” The term “cloud computing” is showing up with greater frequency, but there is still much confusion and unawareness of what it means, and, more significantly for our purposes, how it is affecting and will increasingly affect you. In the decade ahead, cloud computing likely will affect everyone, from major multinational corporations to consumers; from governments to the local grocery store.
But cloud computing, like social media, is ultimately not about technological innovation or novel or transformative invention – it is about changing the fundamental nature of our relationships and how all of us access and use information and application programs: at work, in school, at play, as we shop and as we grow. Cloud computing is transformative because it will enable anyone, anywhere and at any time, to access, use and create information and content – whether working on a spreadsheet, collaborating on a graphic design, creating an online gaming program, searching for a new restaurant, streaming music, or watching a motion picture – independent of a robust processing device. No longer tied to desktops, laptops or proprietary pieces of equipment – just plug into the wall, as you would for electricity, and it’s there. All you need is the ability to enter commands (input) and to display and receive (output) the results. No plugs, no problem. Just as sending and receiving transmissions wirelessly occur today, so too will the devices that access the cloud.
In this brave new world, there will be new providers, new economic models, new access plans, and broadened capabilities, at differential pricing. On demand, subscription, tiered pricing (anyone remember the timesharing companies of the late ‘60s and ‘70s?) will likely return to fashion in a world of cloud computing.
As mentioned above, the Cloud Computing Task Force at Rimon has created a series of white papers – collectively entitled “Transcending the Cloud: A Legal Guide to the Risks and Rewards of Cloud Computing” – to elucidate the opportunities and dangers, the risks and rewards of cloud computing. Our collection of white papers will cover cloud computing issues you may have heard little about, but that are and will be no less significant. Will we still need backup on our devices? What about cloud insurance? New economic and business models mean – yes, you knew this was coming – new taxes. What about security and privacy and data protection in the cloud? We will worry about standards and interoperability. No one provider can possibly cover the world or a world of data and applications – mobile phone carriers interexchange based on regulations over decades; Internet protocols evolved to ensure that email and other providers would enable individuals to communicate regardless of proprietary networks or email programming. Will clouds evolve the same way? Will there be barriers to entry as a cloud provider? Infrastructure is expensive; global capability more so. Providers will vie for cloud apps.
Our approach is also unique. Today, we are launching our initiative. An introduction and three exciting new introductory white papers all dealing with the cloud: government contracting, tax and service levels, and other contractual performance protections. We will release case studies in the weeks ahead, providing practical examples based on the white papers and insights into how law and regulation is likely to affect each of these areas. Where answers are available, we’ll tell you. Where they are not, we’ll be insightful. We have assembled a multi-jurisdictional, cross-disciplinary team, a task force of lawyers and professionals dealing with the issues arising in Cloud Computing. In the weeks and months ahead we’ll keep releasing white papers – antitrust and competition law, e discovery, litigation, insurance, contract law and regulatory compliance. We will not only deal with U.S. law, but will also provide you with contributions from our lawyers around the world. Each release will not only provide an individual chapter that is the subject of the release (today we have Government Contracting, Tax and SLA/Performance Protection), but also an updated comprehensive copy of the growing compendium. Transcending the Cloud will dynamically provide insights as the industry and challenges grow. Keep a copy handy. Make sure you check back for updates regularly. Join us in the conversation.
I want to thank my colleague Adam Snukal for his steady hand and keen insight in helping me to put this Cloud Computing initiative together. And Kevin Vaarsi, our marketing guru, who coordinated much of the logistics and the planning for our initiative. Most important, as you will see today and in the months ahead, a team of Rimon lawyers who have invested countless hours and done significant research to contribute these white papers and bring you their insights – none of this would be possible without them, and each paper will have names, contact information and biographical information about these terrific professionals. As our body of work grows, we will make each white paper available as a separate PDF, but we will also update our “Transcending the Cloud” compendium for those of you wanting a constantly updated and growing body of legal and regulatory insight into Cloud Computing in one place. Make sure you subscribe via email or get the Legal Bytes RSS Feed so you are always in touch with our latest information. Of course, if you ever have questions, you can always contact me Joseph I. (“Joe”) Rosenbaum, Adam Snukal, or any Rimon attorney with whom you regularly work.