Policy Blog Entries by Elizabeth Gonsiorowski

Since §230 of the Communications Decency Act (CDA) was passed in 1996, online service providers (OSPs) and website operators have rested easy under the comfort of blanket immunity. Under the CDA, OSPs couldn’t be held liable for tortious content posted by others, but the CDA’s immunity wasn’t a free pass for copyright infringement or other intellectual property based claims. The CDA specifically stated that it was not designed to preempt intellectual property claims. However, in recent weeks, the scope of the CDA’s immunity and way in which the intellectual property exception should be interpreted has been called into question. Two recent cases—Fair Housing Council of San Fernando v. Roommate.com and Jane Doe v. FriendFinder Network Inc. have interpreted the CDA in ways that might have repercussions.

Yesterday, the Subcommittee on Courts, the Internet and Intellectual Property held a hearing about whether, and how, artists should be compensated when their works are performed on the radio. As much as the prospect of a scintillating debate about performance rights and statutory licenses can draw a crowd, I’m guessing that the pull of star-power may have made the room a little more crowded…

A U.S. District Court dismissed antitrust claims filed against MySpace. In January, LiveUniverse, filed charges against MySpace, claiming that it violated the Sherman Act by monopolizing and attempting to monopolize the market for Internet-based social networking sites, and the market for advertising on such sites. LiveUniverse claimed that MySpace prevented users from viewing LiveUniverse videos and that it deleted links that MySpace users had posted. The court dismissed the claims on the grounds that they were not sufficiently stated and that LiveUniverse did not provide evidence of any actual damages—which it would have had to do to win in court.

You know a Congressional Hearing is good when the Chairman uses "Hotel California" lyrics to drive his point home. This was the case on Wednesday when The Subcommittee on Telecommunications and the Internet Committee on Energy and Commerce held a hearing on Wireless Innovation and Consumer Protection. As the title suggests, the official order of business was to evaluate the current state of the wireless realm. Unofficially, the hearing was all about the iPhone. In his opening comments, Chairman Edward Markey (D-MA) held the iPhone out as the embodiment of the vast potential of wireless technologies, as well as the poster child for technology encumbered by ineffective wireless systems.

Public Knowledge has filed comments in response to a Public Notice from the FCC requesting comment on the proposed XM/Sirius merger. The comments generally parallel Gigi Sohn’s previous testimony before Congress. Like the testimony, the comments state that if the Department of Justice approves the merger under its own criteria, the FCC should approve the merger. However, the merger should only be approved under certain conditions that would serve the public interest by promoting diverse programming, giving consumers additional choices and keeping prices in check. The comments also include two important additions—a clarification of the price-freeze condition and a request that the FCC initiate a rulemaking in regards to terrestrial radio’s current monopoly on local programming.

In a recently filed complaint, plaintiffs bend copyright law and the anticircumvention provision of the DMCA in what appears to be an attempt to create a new kind of liability.

The story isn’t new. Neither is the case.

The story parallels David and Goliath; the case stretches back to the summer of 2005 when Tanya Anderson’s dinner was interrupted by a knock on the door from a legal process server. She was given notice of a lawsuit filed against her by the RIAA, who claimed she owed hundreds of thousands of dollars for copyright infringement for downloading about 1200 songs. When Ms. Anderson contacted the RIAA, she was told she didn’t have a choice—she’d have to pay the fees. Unfortunately, even if she had wanted to pay off the RIAA, she simply did not have the resources. As a disabled single mother, she didn’t have the funds to make the suit disappear.

When you’re operating networks and businesses in the 21st century, but you rely on a copyright system that’s a direct descendant of piano roll cases (yes, piano rolls, as in parts of those self-playing pianos that can be found in dusty corners of black and white Western movies), there’s bound to be a little confusion. On Friday, the Copyright Office held a roundtable meeting in an attempt to clarify some of the issues surrounding digital transmissions. (See the notice for the meeting here). While the Copyright Office can’t make new laws or amend statutes, it can interpret them. Specifically, the Copyright Office is in the process of interpreting portions of the Copyright Act that refer to digital phonorecord deliveries (DPDs).

In hopes of convincing the Court of Appeals to reverse the Southern District of New York’s decision in the Cablevision case, Public Knowledge has contributed and signed on to an amicus brief along with various other organizations and companies interested in maintaining some semblance of coherence in applying copyright law to digital works.