Category Archives: News

Net Neutrality or a Two-Tiered Internet?

What is net neutrality and what are the issues?

Law professor Tim Wu coined the phrase “net neutrality” in a 2003 law review article.   While net neutrality has a number of complex implications, the main idea here is that the Internet is an impartial conduit for information and that all traffic on the Internet would be equal.  That concept seems pretty straightforward. However, net neutrality is a complex, important concept to understand.

netneutrality1

Tim Wu (Open Rights Group)

Since the world moved from dial-up to broadband, the Federal Communications Commission (FCC) has worked to keep the Internet open and neutral. However, on January 4th, the DC Circuit Court of Appeals struck down the FCC’s “Open Internet” rules in Verizon v. FCC. Basically, the court stated that the FCC does not have the authority to impose its net neutrality rules on Internet service providers (ISPs).

“Even though the Commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates. Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such.”

As a result of this decision, there is a grey area that allows Comcast or Verizon to charge extra to have content from certain providers like Netflix streamed more quickly or give preference to their business partners.

Founding Principle. The Internet was founded on the principle of net neutrality. As Sir Tim Berners-Lee, who created the World Wide Web, has said, “Being able to connect freely and equally to the Internet is the fundamental social basis of the Internet, and, now the society is based on it” (Scola, 2014). We take for granted that we as a members of our society, we can access the information we want just like everyone else.

Consumerism. The Consumers Union has been vocal in the debate on net neutrality. They believe that the new FCC rules while prohibiting Internet service providers from blocking traffic, would allow ISPs to charge online providers like Amazon, Google, or Netflix a fee for preferred access to customers. Delara Derakhshani, Policy Counsel for Consumers Union, stated that this Internet fast lane “could create a tiered Internet where consumers either pay more for content and speed, or get left behind with fewer choices” (“Internet,” 2014). Conceivably, content providers could give preferential treatment to online sites that pay them the most.

Innovation. American Libraries Association (ALA) President Barbara Stripling argues that having to pay for faster, efficient access would dissuade entrepreneurs from experimenting. Websites of small businesses and nonprofits would be out of the mainstream and all those start-ups would never make it out of their garages. Stripling has stated, “Many of the innovative services we use today were create by entrepreneurs who had a fair chance to compete for web traffic. By enabling the Internet service providers to limit access, we are essentially saying that only the privileged can continue to innovate” (Miller, 2014). While limiting access would not be the end of the Internet, we could lose the creativity that has resulted in current advances.

Intellectual Freedom. The ALA’s policy statement on the issue of net neutrality is based on the value of intellectual freedom. Intellectual freedom is one of the ethical principles of the profession and is included in the Code of Ethics of the American Library Association. Intellectual freedom is the “right of all peoples to seek and receive information from all points of view without restriction.”  The Internet allows everyone to inform themselves and others. Without net neutrality, information could be more restricted.

Digital Divide. In April, the Institute of Museum and Library Services (IMLS) held a hearing to focus on the role of libraries in providing Internet Services. The IMLS is charged with advising the president and Congress in such matters. The hearings highlighted the fact that the digital divide continues to grow in this country. A Pew Research Center’s Internet & American Life Project report in 2013 states that while 70% of Americans have broadband access; 88% of households with incomes over $75,000 have broadband. Only 54% of households with an annual income of less than $30,000 have broadband. Furthermore, the Pew study found 63 million Americans do not have either a broadband connection or a smartphone.

Access.  Public libraries, not only worried about having to negotiate with ISPs over potentially high rates for patrons to have access to the library’s resources, are also concerned about the broader issue of protecting the equitable use of the Internet for the “common good.” 77 million people use the public library for Internet access each year (“ALA Responds,” 2014). According IMLS President Susan Hildreth, 60% of American libraries offer the only free computer Internet access in their communities and only 9% of those have high capacity connections (Herther, 2014). Furthermore, Internet service providers will not have any business incentive to run fiber optic cable to small towns; and without fiber optic cable, there is no broadband access. Without a policy of net neutrality, these numbers will only go down.

Some organizations such as the American Civil Liberties Union (ACLU) have gone so far as to warn that ISPs could conceivably slow down the websites of political parties and other organizations with which the ISPs’ executives disagree.

A Solution. Kathleen Ann Ruane in a report for the Congressional Research Service suggests a solution for the FCC that would enable the Commission to continue its advocacy of net neutrality. According to the Verizon ruling, the FCC does have the authority to issue rules; however, because Internet service providers are classified as information services rather than telecommunication services, the net neutrality rules concerning anti-blocking and anti-discrimination were thrown out. A reclassification of broadband Internet service providers would seem to be a logical solution for the FCC and others advocating for net neutrality.

Net neutrality is complex and important issue.  After reading about the issues, there are still other underlying questions such as: how do you allocate scarce resources (bandwidth) in a free market economy? Traditionally that would be regulated by price. So then the question becomes who pays and how much? This blog only touches the surface.

Still confused?

John Oliver describes net neutrality as the most boring important issue. His humorous You Tube video (13:17) is worth watching. He gives a not-so-boring explanation.

What Can We Do?

Activists protest against proposed new net neutrality rules outside Federal Communications Commission in May. (Alex Wong/Getty Images)

Activists protest against proposed new net neutrality rules outside Federal Communications Commission in May. (Alex Wong/Getty Images)

Or we could….

Email comments to the FCC at openinternet@fcc.gov. The FCC has established a new inbox to accept comments through the summer. Chairman Wheeler plans to have new rules in place before the end of the year.

An Addendum

On Thursday, July 10, 2014, 11 higher education and library groups issued a set of 11 principles regarding net neutrality meant for the FCC to consider in its rule making. The principles can be found at http://net.educause.edu/ir/library/pdf/EPO1305_1.pdf

Want to read more?

  • American Library Association. (2014, March/April). ALA responds to net neutrality decision. American Libraries Magazine, 45(3/4), 10.
  • Chant, I. (2014, February 15). Court strikes down net neutrality. Library Journal, 139(3), 12-14.
  • Delta, G.B. & Matsuura, J. H. (2014).  Regulation of Access, Interoperability, and Services.
  • In Law of the internet.  St. Paul, MN:  Thomson/West.
  • Heller, M. (2014, June 23). What should academic librarians know about net neutrality? [Web log comment]. Retrieved from http://acrl.ala.org/techconnect/?p=4396
  • Herther, N. K. (2014, June).  FCC and IMLS update focus. Information Today, 31(5), 1-35.
  • Internet rules could put you in the slow lane. (2014, July). Consumer Reports, 79(7), 10.
  • Miller, R.T. (2014). A commons at risk. Library Journal, 139(3), 8.
  • Scola, N. (2014, June 12). Five myths about net neutrality. The Washington Post. Retrieved from http://www.washingtonpost.com/opinions/five-myths-about-net-neutrality/2014/06/12/ff58ad7c-ec06-11e3-93d2-edd4be1f5d9e_story.html

~Betty Thomas~

 

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In Alice Corp. v. CLS Bank, the Court Limits Software Patents, but Does Not Eliminate Them

software

The US Supreme Court ruled against Alice Corporation, the owner of the patent in dispute.

A New York Times article published on June 19, 2014 said that the trial court had invalidated Alice’s patents, stating that the patent holder had only recited abstract concepts. The trial court’s decision was effectively affirmed by the United States Court of Appeals for the Federal Circuit when it issued seven separate opinions, none of which commanded a majority, thus not issuing clear guidance and direction for software patent protection.

Adam Liptak of the N.Y. Times stated that the Court of Appeals decision for the Federal Circuit in the Alice Corp. v. CLS Bank International summarized that the use of Alice’s computer software was not unique, but was simple business software – considered “a building block of the modern economy”, but not deserving patent protection.

According to the US Supreme Court, adding the use of a computer added nothing.

Stating an abstract idea while adding the words ‘apply it’ is not enough for patent eligibility,”  and because the petitioner’s system and media claims add noth­ing of substance to the underlying abstract idea, we hold that they,  too are patent ineligible under §101.

Charlotte Law students, staff and faculty can use their library barcode to view these two BNA articles for a more complete summary of this U.S. Supreme Court patent case decision:

~Jane Fraytet~

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Student Spotlight: Maritza Adonis

maritzaadonis

I recently had the opportunity to sit and chat with the American Bar Association’s Law Student Division 4th Circuit Governor, Maritza Adonis, who is a first-year law student here at Charlotte School of Law. Maritza, a Miami, Florida native, graduated from North Carolina State University in 2010 and worked in the Wake County Teen Court before beginning her law school career last fall. In only her first year of law school, Maritza has accomplished so much, both professionally and academically. In addition to her role as the American Bar Association Law Student Division 4th Circuit Governor, Maritza is active in the Black Allied Law Student Association, Counsel for Children’s Rights, Education Legal Society, and Women in Law.  Maritza is also the recipient of the North Carolina Association of Women Attorneys’ Sarah Parker 2014-2015 Scholarship.

Maritza won the spring vote for the American Bar Association Law Student Division 4th Circuit Governor position by receiving a majority of the votes from the 17 law schools in the American Bar Association Law Student Division 4th Circuit. As Governor, Maritza will be focusing on several different tasks, but some of her main initiatives focuses on the mental health of law students. Maritza believes mental health is a huge issue for law students, and she wants to figure out why students are not seeking help during law school and figure out a way to resolve this issue. One of the ways that Maritza can be a change agent and advocate for law students is by writing American Bar Association resolutions, which are voted on by the American Bar Association and potentially become American Bar Association Rules. Maritza is also hoping that being the American Bar Association Law Student Division 4th Circuit Governor will help to give Charlotte School of Law more national recognition and instill pride in the current students.

Keep a lookout for the major initiatives and moves Maritza has in store for Charlotte School of Law and the entire American Bar Association Law Student Division 4th Circuit.

~Minerva Mims~

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North Carolina Will Be Introducing Legislation to Rein in Patent Trolls

troll

State legislation to control patent trolls could move to the House floor this week. A state-wide coalition has formed to enact legislation “that would entitle companies victimized by frivolous demands of lawsuits from NPEs (Nonpracticing entities) to obtain attorney’s fees and treble damages.” A proposed North Carolina bill would aim to rein in patent trolls; the primary sponsor of the bill is state legislator Tom Murry- who said it was very important to pass this bill since there is such a high concentration of technology companies in North Carolina. According to an article that appeared in the Charlotte Observer on May 24, 2014, “the legislation has broad industry support from a coalition that likens the litigation tactics of patent trolls to extortion”.

Updates on this bill will be posted to this blog when and if the bill passes the North Carolina legislature.

~Jane Fraytet~

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Patent Trolls May Think Twice After Supreme Court Moves To Curb Their Abuses*

troll

Sonia Sotomajor recently wrote two Supreme Court opinions both unanimous and both dealing directly and indirectly with parties known as “patent trolls”. The concepts reviewed in Highmark dealt with the concept of “exceptional cases” and reviewing District Court cases de novo:

The District Court in Highmark found the case “exceptional” and granted Highmark’s motion that their attorney fees be paid by the plaintiff. The Federal Circuit Court reviewed the District Court’s determination de novo and reversed the decision in part. as to the attorney fees.

All aspects of a district court’s exceptional-case determination under §285 should be reviewed for abuse of discretion. Prior to Oc­tane Fitness, LLC v. ICON Health & Fitness, Inc., ante, p. ___, this determination was governed by the framework established by the Federal Circuit in Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F. 3d 1378. Octane rejects the Brooks Furniture framework as unduly rigid and holds that district courts may make the exceptional­ case determination under §285 in the exercise of their discretion. The holding in Octane settles this case. Decisions on “matters of dis­cretion” and holds that district courts may make the exceptional ­case determination under §285 in the exercise of their discretion. HIGHMARK INC. v. ALLCARE HEALTH MANAGEMENT SYSTEM, INC.

In the second opinion that Sotomayor wrote Octane Fitness, she wrote that the case law relied upon in Octane from the Brooks case was unduly rigid:

 (a) Section 285 imposes one and only one constraint on district courts’ discretion to award attorney’s fees: The power is reserved for “exceptional” cases. Brooks Furnitureis too restrictive in defining the two catego­ries of cases in which fee awards are allowed. The first category— cases involving litigation or certain other misconduct—appears to ex­tend largely to independently sanctionable conduct. But that is not the appropriate benchmark. A district court may award fees in the rare case in which a party’s unreasonable, though not independently sanctionable, conduct is so “exceptional” as to justify an award. For litigation to fall within the second category, a district court must de­termine that the litigation is both objectively baseless and brought in subjective bad faith. But a case presenting either subjective bad faith or exceptionally meritless claims may sufficiently set itself apart from mine-run cases to be “exceptional.” The Federal Circuit imported this second category from Professional Real Estate Inves­tors, Inc. v. Columbia Pictures Industries, Inc., 508 U. S. 49, but that case’s standard finds no roots in §285’s text and makes little sense in the context of the exceptional-case determination. Pp. 8–10.

(2) Brooks Furniture is so demanding that it would appear to render §285 largely superfluous.

In conclusion, the Wall Street Journal Blog stated that the defense bar hopes that these  rulings will make patent-holding firms,” think twice before filing cases based on flimsy patents.”*

~Jane Fraytet~

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NLRB Ruling: Northwestern University Football Players are “University Employees”

protective football helmet and leather football with reflection

On March 26, 2014, an official for the National Labor Relations Board (NLRB) ruled that Northwestern University football players are “university employees” within the meaning of the National Labor Relations Act, and not simply student-athletes.[1]  The significance of this ruling is that the NLRB has directed the players to vote by secret ballot to decide whether they wish to unionize, which would force Northwestern to listen and bargain with its players on compensation/scholarship awards for playing football at the university.

Sports Illustrated writer Andy Staples suggests “[this] ruling likely will have zero immediate effect. . . . and the ruling only affects players at private schools because the NLRB has no power over state-run institutions.  Still, the ruling should serve as the tipping point for the NCAA and the leaders of the schools in the five wealthiest conferences to realize it’s time to stop fighting and start bargaining.”[2]

According to the 24-page decision, between the years 2003 and 2012, Northwestern’s football program generated revenues of approximately $235 million and incurred total expenses of $159 million.  The decision also provides that scholarship players typically receive $61,000 each academic year for tuition, fees, and books.  Living-expense stipends are also provided to upper-classmen who reside off-campus; and additional funds may be provided to cover expenses such as health insurance, dress clothes for game travel, tutoring fees, and other assistance as needed.

Seemingly significant to the ruling were the facts outlined in the decision with respect to Northwestern’s control over the students in the performance of their duties as football players, who stand to lose their scholarship/aid for failing at any number of those duties.  The decision outlines duties such as: engaging in training camp six weeks before the start of the academic year, many days beginning at 5:45 a.m. and ending at 10:30 p.m.; devoting 40-50 hours per week to their football duties during the academic year in football season; obtaining permission from coaches to make living arrangements, apply for outside employment, travel off-campus, post items on the Internet, and engage in other types of activities affecting their private lives.

The docket activity[3] shows that Northwestern requested a review of the decision to the NLRB in Washington, D.C. on April 9, 2014.  The player vote is scheduled for April 25, 2014.[4]

~Shannon Reid~


[1] The full text of the “Decision and Direction of Election” by the NLRB can be downloaded at http://www.nlrb.gov/case/13-RC-121359.

[2] Andy Staples’s article is available at http://sportsillustrated.cnn.com/college-football/news/20140327/ncaa-athletes-union-ruling-northwestern/.

[3] The docket activity on this matter is available at http://www.nlrb.gov/case/13-RC-121359.

[4] The vote is scheduled at Northwestern in Evanston, Illinois on April 25, 2014, according to the Huffington Post at http://www.huffingtonpost.com/2014/04/09/northwestern-football-team-union-vote_n_5120617.html.

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What does Starbucks have to say about “Dumb Starbucks”?

Dumb Starbucks Logo

A pop-up coffee shop labeled “Dumb Starbucks” opened in Los Angeles recently.  This satirical coffee shop gained lots of media attention, because it had the appearance and feel of the actual Starbucks.  However, this Starbucks labeled all of their drinks “dumb”, like a “Dumb Frappuccino”.

It turns out that this coffee shop was created for publicity by Comedy Central.  Before the Starbucks Corporation knew of the connection to Comedy Central, Starbucks made statements about its protected trademark, stating “Dumb Starbucks” could not legally use the Starbucks name.  “Dumb Starbucks” responded with defending their use of the name by claiming it was a parody.

“Dumb Starbucks” posted a Youtube video claiming their legitimacy.

This coffee shop never sold its coffee or other items.  In the couple of days it was functioning, all the items were offered for free.

In the end, the LA County Health department, not intellectual property law, caused the “Dumb Starbucks” shop to close due to operating without a license.

 

Since the “Dumb Starbucks” is now no longer operating, it is doubtful that Starbucks will pursue legal action.  However, the potential exists, since Comedy Central’s Nathan Fielder claims he wants to open another “Dumb Starbucks” in Brooklyn, NY.

~Brooke Rideout~

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The City of New York Will Settle Both Cases That Were Brought Against Them

police

Mayor de Blasio has agreed to withdraw the city’s Appeal from the Federal District Court  decision rendered by Judge Scheindlin. The city asked the U.S. Court of Appeals for the Second Circuit to return the case on appeal back to the Federal District Court in New York.

Once the N.Y. Federal Appeals Court returns the case back to the N.Y. Federal District Court, Judge Torres will implement the agreement reached by the sets of Plaintiffs who filed the original two suits against the City of New York.

In the lower court decision decided by Judge Scheindlin, she “ordered the appointment of a monitor to develop, in consultation with the parties, widespread reforms of the department’s policies, training, supervision, monitoring and discipline regarding stop-and-frisk” and that process will go forward as part of the agreement.

New York Times Resources:

Previous Blog Postings on Charlotte Law Library News:

~Jane Fraytet~

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Amanda Knox: Guilty or Innocent?

amandaknox

Overview:

Amanda Knox was born in Seattle, Washington.  In September 2007, Knox moved to Perugia, Italy to study at University for Foreigners for a year.  She lived with three roommates, including Meredith Kercher, who was also a student.   In October 2007, she started a romantic relationship with Raffaele Sollecito.

Kercher, 21, was found brutally stabbed to death in her house, which was shared with Knox.  According to Italian prosecutors, Kercher was murdered after rejected attempts by Knox, Sollecito, and Ruby Guede, to include her in a sex game.

In 2009, Amanda Knox and her boyfriend at the time of the murder, Raffaele Sollecito, were convicted of the murder of Meredith Kercher and sentenced to 26-years.  Rudy Guede was also found guilty of the murder of Kercher leading to a 30 year sentence.  In 2011, the murder conviction was overturned for Knox and Sollecito due to the mishandling of the investigation and evidence.

Her Life in Prison:

During her four years in prison, Knox was told she was HIV positive, which was later proven to be false.   This diagnosis prompted Knox to write a list of all of her sexual partners, which was disclosed to the media.  Also, Knox claims that she was sexually harassed and intimidated by officials while in prison.

amandaknox2

Retrial:

In March of 2013, the decision was reversed, leading to a retrial for Amanda Knox and Raffaele Sollecito in Florence.  In September, the retrial began with Knox in absentia.  In January 2014, Knox was found guilty by the Italian Court and sentenced to a 28 ½ year sentence.

Amanda’s lawyer announced to the press that Amanda will appeal the decision as the case will go to the Italian Supreme Court.  Knox recently stated she “will never go willing” back to Italy.

Will Amanda Knox be sent back to Italy?

If Amanda Knox is convicted of murder, she may have to return to Italy.  But what about double jeopardy, which is a United States law that prevents an individual from being tried again for the same offense?  Well, some experts say this law could prevent Knox’s extradition.  However, others experts say this is not enough to keep the United States from extraditing Knox.  The current extradition treaty between the United States and Italy does not classify double jeopardy as a possible reason to prevent extradition.  In addition, the United States Secretary of State would have the final say over her extradition request.

~Brooke Rideout~

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Oakland Football Cheerleader Filed a Class-Action Suit Against the Oakland Raiders

cheerleaders Lacy T. filed a lawsuit as a class action suit on behalf of all present and former Oakland Raider cheerleaders who have worked for the football team since 2010. Ms. T claims that the owners of the Oakland Raiders violated both California and Federal wage laws, as the Raider cheerleaders were paid $1,250 per season, which amounted to $125 per home game and an average of $5.00 per hour worked.  The federal minimum wage is $8.00.

Oakland Raider cheerleaders are required to work approximately 9 hours per day on game days and attend 2 or 3 three-hour rehearsals per week and make approximately 10 unpaid appearances per year at charitable events.

The Oakland cheerleaders also have many out-of-pocket expenses each year that they are not reimbursed for, which can amount to as much as $650.00. The cheerleaders have to pay their own travel expenses to appearances, pay for Raider-approved hair stylists, yoga mats and false eyelashes.

In order for this lawsuit to move forward, a hearing must be held in the Superior Court in Alameda County in California on whether the lawsuit can be certified as a class action.  The hearing should take place within the next 3-5 months.

~Jane Fraytet~

 

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