Technically Legal

The FCC takes another stab at net neutrality and gives content companies control over your outputs.   Adobe brings up a new theory for Apple’s anti-competitive activity.

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FCC Takes Another Stab at Net Neutrality
FCC to claim some broadband regulatory power
FCC Statement

FCC To Content Owners: All Your Customers Televisions Are Belong to You
FCC Gives Hollywood The Right To Break Your TV/DVR… Just ‘Cause
FCC Opinion

DOJ and FTC Investigate Apple for Antitrust Violations
DOJ and/or FTC may launch antitrust inquiry against Apple for developer policies

3 Comments Posted in: Podcast on May 10, 2010

FCC v. Comcast, e-mail privacy, and DMCA constitutionality.

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FCC v. Comcast

11th Circuit on E-mail Privacy

DMCA v. Free Speech

Comments Off Posted in: Podcast on April 12, 2010

Net Neutrality, ASCAP and BMI want money for iTunes 30-Second Previews, Google Demands Android Modder Take Down Software.

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Net Neutrality

FCC chairman formally proposes net neutrality rules
All Circuits Aren’t Busy

ASCAP and BMI Want Fees

Google Halts Andriod Developer

2 Comments Posted in: Podcast on September 29, 2009

Safe-harbors under the DMCA, limits on the Computer Fraud and Abuse Act, Outing Anonymous Posters in California, Google’s FCC Filing-Unredacted.

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Safe-Harbors under the DMCA

Veoh Gets Yet Another Terrific 512 Defense Win–UMG v. Veoh
UMG v. Veoh: Big Win for Online Video
Judge: Safe Harbor applies to Veoh; UMG lawsuit eviscerated
The Opinion

Limits on the Computer Fraud and Abuse Act

Ninth Circuit Holds Disloyal Computer Use Is Not A Crime
The Opinion

Outing Anonymous Posters in California

Splitting the Digital Baby: California Court Creates New Procedure for Uncovering Anonymous Commenters
The Opinion

Google’s FCC Filing-Unredacted

Google Releases Complete Google Voice App FCC Response

Comments Off Posted in: Podcast on September 21, 2009

Apple and the FCC, Cyber Harassment, and the Redbox Suit.

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Apple, AT&T, Google and the FCC

Apple Answers the FCC’s Questions
AT&Ts and Google’s Responses

Cyber Harassment

Woman charged with harassment over suggestive post.

Redbox v. The Movie Industry

Redbox sues Warner Home Video over DVD Rentals
Automated Retail LLC v. Universal Studios
August 17th Opinion

Comments Off Posted in: Podcast on August 26, 2009

Apple and the FCC, Student Arrested for Hacking XBOXs for Fun and Profit, Iran getting better at web filtering.

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Apple, AT&T, Google Voice and the FCC

FCC barks at Apple for silencing Google Voice
More of A Non-Denial Denia if You Ask Me
FCC to Scrutinize Exclusive Wireless Contracts
Ending Exclusive Handset Agreements

Student Arrested for Hacking XBOXs

OC man charged with modifying video game consoles
Student Arrested for Jailbreaking Game Consoles — Update
Indictment
DMCA–Anti-Circumvention Provision

Iran Getting Better At Web Filtering

Iran Getting Better at Filtering Web Traffic

Book and Blog Announcement

Moral Panics and the Copyright Wars (Blog)
Moral Panics and the Copyright Wars (Book) by Willian Patrhy

Comments Off Posted in: Podcast on August 10, 2009

Recently, Congress and the FCC have been looking into exclusive deals between handset manufacturers (like Apple, Palm, and Motorola) and carriers (Verizon, Sprint, AT&T). The focus of the inquiry is whether they are anti-competitive, and whether they should be banned. The FCC is in a unique position to stop this practice because they are not bound by the same, narrow, requirements of antitrust law.

The FCC

The Federal Communications Commission is allowed to regulate wired and wireless communication and equipment necessarily associated with those. The regulations they pass have to be in the “public interest, convenience and necessity.” If the FCC were to conduct hearings and find that it would be in the “public interest, convenience and necessity,” it could ban the practice of exclusive licenses.

If the FCC were to make a rule like this, it would be subject to what is called a notice and comment period. The FCC would publish the proposed rule, and anyone could write in and make suggestions, or ask for explanations. The FCC would then respond to the comments and publish a final rule.

The final rule would almost certainly be challenged in court. The court would look at whether or not the regulation was within the power of the FCC (probably yes), and whether or not banning these exclusive license agreements was actually in the “public interest, convenience and necessity.” It is possible that without these exclusive licenses development costs would be higher, or they would be borne entirely by the developer, reducing innovation in the handset market. It would be hard to prove this one way or the other. So the FCC would likely get the benefit of the doubt unless the challenger could present some hard evidence.

Even with these limitations, the FCC has a better chance of stopping exclusive agreements than the the Federal Trade Commission, Department of Justice, or Private Parties.

FTC, DOJ and Private Suits

If the FCC doesn’t stop these exclusive agreements, the Department of Justice (and their Antitrust Division), the Federal Trade Commission (and their Antitrust Division), or private parties could try to stop these exclusive arrangements too.

While the Sherman Antitrust Act says that “Every contract, combination . . . or conspiracy, in restraint of trade . . . is declared to be illegal.” It doesn’t really mean that. From very early on the Supreme Court has taken this to mean that only unreasonable restraints on trade are illegal.

The DOJ and the FTC each have their own guidelines to apply when going after alleged antitrust violations. In the end, though, it comes down to whether or not a court thinks that the contract is an illegal restraint on trade.

Antitrust law is really to complicated to go into any detail here. Suffice it to say, there would be a lengthy court battle about a number of antitrust theories. Chief among the arguments would what the relevant market was (all cellphones or just smart phones), how much of the market the handset maker had, and whether the exclusive deal had an adverse effect on competition.

It is notoriously hard to guess how courts will rule on these issues, making it very difficult to predict an outcome. The cases would also be very specific from phone to phone. So the outcome would not be as even as it would be if the FCC or Congress acted to stop these exclusive agreements.

1 Comment Posted in: Analysis on June 25, 2009