Category Archives: Copyright

Second Circuit Debunks FCC’s Set-Top Box Arguments

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Last February, the FCC launched yet another attempt to excise itself from (in the immortal words of former FCC Commissioner Robert McDowell) the “Valley of Unattained Goals” of Section 629.  To justify its aggressive regulatory intervention, the Commission argued that (1) there is a separate market for set-top boxes over which MVPDs allegedly exercise market power; and, as such, (2) the rates consumers pay to rent set-top boxes, to put it colloquially, are “too damn high.” While such arguments make for great populist fodder, the problem is that the Commission’s foundational arguments underlying their set-top box proposal simply are not Continue Reading »

2014 Year in Review…

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2014 provided fertile soil for those interested in policy research. So with New Years rapidly approaching, I want to uphold tradition and use our last blog post of the year to highlight what we at the Phoenix Center thought to be the most interesting policy issues of 2014 and to provide some select examples of where we believed we added constructively to the debate. Spectrum Availability and Allocation While spectrum policy is always complex, the debate again boiled down to the fundamental questions: how do we free up more spectrum; and once we do, how do we allocate it? For Continue Reading »

The SOPA Paradox…

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Last week marked the two-year anniversary of the (dare I say ignominious) defeat of the Stop Online Piracy Act or “SOPA.”  The defeat of SOPA marked a bit of a watershed in American politics, as the legislation was stopped not by traditional means such as a Presidential veto or even a backroom hold by a senior legislator, but by a massive grassroots up-swell (complete with self-imposed blackouts of many popular web pages) who feared a purported government takeover of the Internet.  Putting aside for the moment that a good deal of the objections to SOPA were based on sophistry and Continue Reading »

Who is at Fault for On-Line Piracy? According to PiracyData.org, Blame the Victim…

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Yesterday, scholars at the Mercatus Center unveiled a new website entitled PiracyData.org.  According to the site’s co-creator Jerry Brito, the purpose of this webpage is to determine whether the most-pirated movies each week are available for legal streaming, digital rental, or digital purchase.  To accomplish this goal, the site combines TorrentFreak’s weekly top-ten list of the most pirated movies with Can I Stream It’s database of movie availability. In light of the demonstrated unreliability of the site’s data—something Mr. Brito concedes—no conclusions or even sensible speculations can be drawn from PiracyData.org.  But, one meaningful question to ask is why is Continue Reading »

The Curious Cases of Aereo, BarryDriller and FilmOn X…

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With proliferating advances in new technology, enforcing copyright in the digital age is becoming increasingly difficult.  Take for example the string of cases over the last twelve months which have ruled on the legality of new third-party subscription services (described in more detail below) designed to allow customers to view over-the-air broadcast television via the internet and mobile devices.  At issue was a simple legal question: do these services facilitate a “public performance” of protected works under Section 101 of the Copyright Act (a.k.a. the “Transmit Clause”), which provides, inter alia, that a work is performed publicly whenever such work Continue Reading »

Copyright and Wireless Carterfone (Part Deux)…

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Last month, I authored a blog discussing the Librarian of Congress’s recent decision not to exempt handset unlocking of new phones from the anti-circumvention petitions of the Digital Millennium Copyright Act (“DMCA”).  Since that blog was posted, copyright-reform activists launched an on-line campaign to have the White House “ask the Librarian of Congress to rescind this decision, and failing that, champion a bill that makes unlocking permanently legal.”  Last week, in a post by R. David Edelman, Senior Advisor for Internet, Innovation Policy, entitled It’s Time to Legalize Cell Phone Unlocking, the White House joined in the dispute stating: The Continue Reading »

Copyright and Wireless Carterfone…

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Recently, a renewed interest in long-term contracts and the practice of locking handsets to networks has emerged from an unlikely source:  Copyright law. Making a very long and complicated story short, under Section 1201(a)(1)(A) of the Digital Millennium Copyright Act (DMCA), it is unlawful to circumvent certain technological measures employed by or on behalf of copyright owners to protect their works.   That said, copyright law always embeds some balance between owner and user, and Section 1201(a)(1)(B) limits the prohibition for subsection (A) by exempting those persons who are “adversely affected by virtue of such prohibition in their ability to make Continue Reading »