Tuesday, January 31, 2012

FCC RFC Lightsquared Petition for Declaratory Ruling - Comments Due Feb. 27

FCC Public Notice:  "On December 20, 2011, LightSquared Inc. (LightSquared) filed a Petition for Declaratory Ruling (Petition), requesting that the Commission “resolve the regulatory status” of commercial Global Positioning System (GPS) receivers, to the extent their operations may be impaired by the ancillary terrestrial component (ATC) of LightSquared’s licensed operations in the 1524-1559 MHz Mobile-Satellite Service (MSS) band.1 To this end, LightSquared requests specific declarations designed to establish that commercial GPS devices are not entitled to interference protection from LightSquared’s operations, so long as LightSquared operates within the technical parameters prescribed by rule and Commission Order. Pursuant to Rule 1.2(b), we invite comment on LightSquared’s petition, and establish a pleading cycle. 

"On January 26, 2011, the International Bureau granted LightSquared Subsidiary LLC (a subsidiary of LightSquared Inc., hereinafter also referred to as LightSquared) a conditional waiver of the ATC “integrated service” rule, thereby establishing certain conditions that LightSquared must meet before it can provide the terrestrial portion of service contemplated by its proposed integrated satellite and terrestrial 4G wireless network.3 The Conditional Waiver Order prescribed an Interference-Resolution Process by which LightSquared would work with the GPS community to resolve concerns raised about potential interference to GPS receivers and devices that might result from LightSquared’s planned terrestrial operations. As a condition of commencing such commercial operations, the Conditional Waiver Order required that this process first be “completed,” a term defined as the point at which “the Commission, after consultation with NTIA, concludes that the harmful interference concerns have been resolved and sends a letter to LightSquared stating that the process is complete.”

"To date, the Interference-Resolution Process has not been completed. Although LightSquared submitted, as a required step in the Process, the final report of the technical working group that it co-chaired with the U.S. GPS Industry Council (USGIC), the Commission issued a Public Notice calling for public comment on the report5 and has since asked for additional technical submissions and testing. In reply comments filed in connection with the Public Notice, LightSquared raised a full range of issues regarding the scope of interference protection to which GPS receivers are entitled.

"Separately, in the Report and Order in ET Docket No. 10-142, which focused on the addition of terrestrial service allocations to the 2 GHz MSS band, the Commission briefly discussed the Conditional Waiver Order and the Interference-Resolution Process.7 The U.S. GPS Industry Council (USGIC) filed a petition for reconsideration in that docket, requesting a statement from the Commission that the GPS community is not required to share responsibility for resolving interference issues with MSS ATC providers like LightSquared.8 The USGIC Recon Petition, which is pending, contends that MSS licensees providing ATC service are required to protect GPS receivers from interference caused by such terrestrial operations, and that the Commission has placed the obligation to resolve harmful interference on those MSS licensees.9 LightSquared opposed the USGIC Recon Petition, raising many of the same arguments contained in its Petition for Declaratory Ruling.10 

"On December 23, 2011, the Financial Services and General Government Appropriations Act, 2012 (2012 General Government Appropriations Act) was enacted into law as part of the Consolidated Appropriations Act, 2012.11 Section 628 of the 2012 General Government Appropriations Act prohibits the Commission from using any funds made available by that Act “to remove the conditions imposed on commercial terrestrial operations in the Order and Authorization adopted by the Commission on January 26, 2011 (DA 11-133) [i.e., the Conditional Waiver Order], or otherwise permit such operations, until the Commission has resolved concerns of potential widespread harmful interference by such commercial terrestrial operations to commercially available Global Positioning System devices.”

"In the instant Petition, LightSquared in essence seeks a declaratory ruling that, provided ATC operations are conducted in accordance within the Commission’s technical parameters, commercially available GPS devices are not protected against harmful interference caused by those ATC operations. Section 628 of the 2012 General Government Appropriations Act bears on this issue as it relates to LightSquared, inasmuch as it precludes the Commission from permitting LightSquared to engage in such ATC operations under the Conditional Waiver Order until we have resolved concerns about interference to GPS. Further, because we believe the ongoing Interference-Resolution Process provides the most appropriate forum for considering LightSquared’s satisfaction of the interference-resolution conditions of the Conditional Waiver Order, we associate LightSquared’s Petition with the docket established by the Commission for petitions for reconsideration of the Conditional Waiver Order, IB Docket No. 11-109. To the extent the Petition raises general issues about the regulatory status of GPS devices, these issues will be considered in ET Docket No. 10-142. 

"Accordingly, interested parties are invited to file comments in response to LightSquared’s petition for declaratory ruling in IB Docket No. 11-109 or ET Docket No. 10-142, as appropriate, no later than 30 days after the release date of this public notice. Parties may file replies in response to those comments in IB Docket No. 11-109 or ET Docket No. 10-142, as appropriate, no later than 15 days after the date that comments are due. 

"This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission’s ex parte rules.13 Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter’s written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission’s ex parte rules. 

Action by the Chief, International Bureau.

- FCC-

DA 12-103 January 27, 2012
IB Docket No. 11-109 ET Docket No. 10-142
Comment Date: February 27, 2012 Reply Comment Date: March 13, 2012

Released:  01/27/2012.  INTERNATIONAL BUREAU ESTABLISHES PLEADING CYCLE FOR LIGHTSQUARED PETITION FOR DECLARATORY RULING. (DA No.  12-103). (Dkt No 10-142 11-109 ).  IB  http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-12-103A1.doc


Friday, January 27, 2012

1.27 :: Waiting :: Rigged :: Demands :: Day of Reckoning :: iDead :: Blasts the BureauCrats in Capital City :: Blame it on the Internet ::

CyberTelecom News
Federal Internet Law and Policy
I know not with what weapons World War III will be fought, but World
War IV will be fought with sticks and stones. --Albert Einstein

If You're Waiting on FiOS, You Could Be Waiting a While - 30% of
Verizon Customers May Wait Years for Upgrades, DSLReports
We've noted often how with the exception of a few major existing
franchise obligations, Verizon's FiOS upgrades are essentially over.
That means around 40% of Verizon's broadband customers on slower DSL
and in a lot of major cities (Boston, Baltimore, Buffalo) are still
waiting for next-generation upgrades. The company is now focused on
far more profitable wireless ventures (read: no unions, no pensions),
and if you're

LightSquared: Interference tests were rigged, Politico
The GPS industry rigged the testing of LightSquared's wireless network
in an attempt to stymie the broadband startup, an executive claimed

Sen. Grassley demands meeting with FCC aide, thehill
Sen. Chuck Grassley (R-Iowa) has demanded to meet with a senior aide
at the Federal Communications Commission (FCC) to discuss troubled
wireless company LightSquared. In a letter to FCC Chairman Julius
Genachowski on Thursday, Grassley demanded to meet with Paul de Sa,
chief of the Office of Strategic Planning and Policy Analysis, before
he resigns his post next month.

LightSquared's Fate Could Be Decided Within Weeks, Here's What's At
Stake, Business Insider
It may soon be the day of reckoning for Phil Falcone's embattled
telecom venture LightSquared.

LightSquared, Feds In New Round Over GPS, Aviation Week
LightSquared and the GPS industry continue their war of words over
potential interference between the planned broadband wireless network
and the position and timing signals from the U.S. government-owned
navigation-satellite constellation.

FCC Handling of Falcone's LightSquared Faces House Hearing, Bloomberg
A U.S. House panel plans to examine the Federal Communications
Commission's handling of LightSquared Inc.'s proposed wireless
service, which has been stymied amid arguments about interference with
navigation gear.

Ron Paul not allowed to find out who posted mean video about Jon
Huntsman on YouTube, Internet Cases
Ron Paul 2012 Presidential Campaign Committee, Inc. v. Does, 12-00240
(N.D. Cal. January 25, 2012)

Top 20 U.S. Web Properties: Google Surges Past Yahoo, Clickz
Amazon, Federated Media also see big gains in audience by year's end,
comScore Media Metrix reports.

23 Died Building Your iWorld: Time to Boycott Apple?, Forbes
Image via Wikipedia If you add up all the workers who have died to
build your iPhone or iPad, the number is shockingly high. Apple
(AAPL), at $416 billion it's the world's most valuable tech company,
gets you to feel good about paying $600 for an iPad. And despite being
priced more than

AT&T CEO blasts FCC bureaucrats for tanking its T-Mobile deal, CNET
CEO Randall Stephenson claims the federal agency is "picking winners
and losers" when it comes to which spectrum deals it will greenlight.

AT&T punishes its customers for T-Mo merger's failure, Gigaom
Wondering why AT&T smartphone data rates just went up? Because the
operator was denied its acquisition of T-Mobile – at least that's what
AT&T CEO Randall Stephenson implied at AT&T's financial results call
on Thursday. AT&T seems awfully bitter about AT&T-Mo's failure, and
now it appears to be taking it out on its customers.

AT&T loses whopping $6.7B on pensions, T-Mobile breakup, CNET
Carrier adds 717,000 new subscribers and activates 9.4 million
smartphones, but pays the price with increased subsidies.

AT&T Helps Educate Consumers on Dangers of Texting While Driving, AT&T
AT&T recently was a sponsor of the NBC4 Health & Fitness Expo in
Washington, DC., to help grow awareness of "It Can Wait," an AT&T
campaign dedicated to teaching consumers about the dangers of texting
and driving, a very relevant issue to our health and safety. Our
booth featured a texting while driving simulator, which demonstrated
even to the most seasoned driver how dangerous texting and driving can
be. Click

U.S. lawmakers press Google on privacy policy changes, Globe
Letter expresses concern that planned consolidation of user
information may make it more difficult for consumers to protect their

Google's New Privacy Policy Will Allow Tracking Across Services, NPR
Critics say the new policy will open opportunities for hackers to
access vast personal data.

Tweets still must flow, Twitter
One year ago, we posted "The Tweets Must Flow," in which we said,

Twitter 'can censor by country', BBC
Twitter says it now has the technology to censor tweets on a country
by country basis, as it continues to expand internationally.

Twitter to censor tweets in individual countries, Globe
Decision likely to raise fears that Twitter's commitment to free
speech may be weakening

The ACTA Fight Returns: What Is at Stake and What You Can Do, Geist
The reverberations from the SOPA fight continue to be felt in the U.S.
(excellent analysis from Benkler and Downes) and elsewhere (mounting
Canadian concern that Bill C-11 could be amended to adopt SOPA-like
rules), but it is the Anti-Counterfeiting Trade Agreement that has
captured increasing attention this week. Several months after the
majority of ACTA participants signed the agreement, most European
Union countries

How To Protest ACTA, Forbes
After the internet's successful protest of the Stop Online Piracy Act,
many of the same groups are now turning their attention to ACTA, the
Anti-Counterfeiting Trade Agreement, a European bill that could affect
essentially every country in the developed world. It looks like SOPA
in a lot of ways, except on a much grander scale , bypassing sovereign
governments and even affecting food patents.

'Jailbreaking' Exemption to DMCA Expires Soon - EFF Pushes to Ensure
Jailbreaking Remains Legal, DSLReports
As it stands, the often empowering act of jailbreaking your device
remains perfectly legal thanks to an exemption embedded in the DMCA.
In July of 2010 the government created an exemption, ruling that such
tinkering perfectly legal as long as the intent wasn't to bypass copy
protection. With the exemption set to expire, user uid://656685 writes
in to note the Electronic Freedom Foundation is waging a campaign to
convince the

Once More, With Feeling: It Wasn't Silicon Valley Or Google That
Stopped SOPA/PIPA, It Was The Internet, Techdirt
Over the last week, after SOPA and PIPA were put on life support,
we've noticed an incredibly tone deaf response from the supporters of
these bills, lashing out at the wrong parties and trying to figure out
where to place the blame. The usual target has been "the tech
industry," by which they usually mean "Google." That's why the MPAA's
Chris Dodd wants to sit down with "tech companies" at the White House
to discuss this. It's why

The Danger of Caricaturing Opposition to PIPA and SOPA, CDT
Last Friday, two days after the massive January 18th online strike
protesting PIPA and SOPA, CDT Senior Policy Counsel David Sohn
appeared on TechCrunch TV to debate Viacom General Counsel Michael
Fricklas in a segment entitled "Can SOPA Be Fixed Or Should It Stay

There's No Fixing SOPA And PIPA; Time To Start Over, Forbes
Guest post written by Gigi B. Sohn

Bloggers and Shield Laws II: Now, You Can Worry, Citizens Media Law Project
A few weeks ago, I wrote that bloggers should not be too concerned
about a decision by a federal judge in Oregon that blogger Crystal Cox
is not protected by Oregon's reporters' shield law in a defamation

Video: Netflix earnings beat estimates, Globe
BNN gets instant reaction to Netflix earnings with Barton Crockett,
Director&Senior Analyst, Media, Lazard Capital Markets.

Department of Justice Misdirection on Cloud Computing and Privacy, EFF
Does using cloud computing services based in the United States create
a risk of US law enforcement access to people's data? The US
Department of Justice (DOJ) seems to be trying to placate
international concern by saying one thing in international fora; but
it says something quite different quite in the US courts.

Video: Google at your own risk, Globe
Google's revised privacy policy is raising new concerns about
consumers rights to their information on the Internet and other
connected products

Setting the record straight about our privacy policy changes, Google
A lot has been said about our new privacy policy. Some have praised us
for making our privacy policy easier to understand. Others have asked
questions, including members of Congress, and that's understandable
too. We look forward to answering those questions, and clearing up
some of the misconceptions about our privacy policies that first
appeared in the Washington Post.

NIST Issues Cloud Computing Guidelines for Managing Security and Privacy, NIST
The National Institute of Standards and Technology (NIST) has
finalized its first set of guidelines for managing security and
privacy issues in cloud computing.*Guidelines on Security and Privacy
in Public Cloud Computing (NIST Special ...

#McDStories: When A Hashtag Becomes A Bashtag, Forbes
Here's a cautionary tale for the corporate social media consultants of
the world. Last week, McDonald's launched a Twitter campaign using the
hashtag #McDStories; it was hoping that the hashtag would inspire
heart-warming stories about Happy Meals. Instead, it attracted snarky

DOJ Wants to Know Who's Rejecting Your Friend Requests, EFF
In the latest turn in our Freedom of Information Act (FOIA) lawsuit
for records related to the government's use of social networking
websites, the Department of Justice finally agreed to release almost
100 pages of new records. These include draft search warrants and
affidavits for Facebook and MySpace and several PowerPoint
presentations and articles on how to use social networking sites for
investigations. (For more on

Disappointing Ruling in Compelled Laptop Decryption Case, EFF
A federal district court in Colorado has handed down an unfortunate
early ruling (pdf) in a case in which the government is attempting to
force a criminal defendant to decrypt the contents of a laptop.

Encryption and the Fifth Amendment Right Against Self-Incrimination,
Volokh Conspiracy
I blogged a lot about this topic a few years ago when the Boucher case
was pending; although an appeal was filed in that case in the First
Circuit, the appeal was dropped so the appellate court never decided
it. In any event, several readers point me to a new decision on the
topic, United States v. Fricosu, out of the District of Colorado.

Call for cyberwar 'peacekeepers', BBC
Cyber-attack on our digital lives is a growing problem according to
the US Army's Cyber Command, which is recruiting "world class cyber

Attacks resume against US Department of Justice, Netcraft
The United States Department of Justice appears to be under attack for
the second time since the popular Megaupload file sharing site was
taken down. The group Anonymous appears to be carrying out this latest
attack in protest against the Anti-Counterfeiting Trade Agreement

Disable software, warns Symantec, BBC
Symantec advises customers to stop using its pcAnywhere program after
stolen source code exposes serious vulnerabilities.

Georgia Wants to Be a Broadband Backwater - Yet Another Attack on
Community Broadband, DSLReports
You'll recall that last year, after four years of lobbying by Time
Warner Cable and CenturyLink, North Carolina passed a law seriously
restricting the right of local communities to wire themselves for
broadband -- even if local incumbents wouldn't. Neither Time Warner
Cable and CenturyLink are what you'd call aggressive when it comes to
upgrading last mile speeds, so the law made sure they wouldn't have to
worry about locals getting fed

Hawaii Legislature Weighs IP Tracking Bill, Daily Dashboard
CNET News reports on a Hawaiian bill introduced last week that would
require any company that "provides access to the Internet" to create
"virtual dossiers" of state residents. Introduced by Rep. John Mizuno
(D-Oahu), H.B. 2288 would mandate that providers track "Internet
destination history information" and "subscriber's
information"--including name and address--and retain the data for two
years. According to the report, the bill does

Hawaiian Data Retention Bill Would Force Internet Companies to Spy on
Users' Browsing Habits, EFF
The bill has been tabled after being greeted by "vehement opposition."

Why Doesn't Washington Understand the Internet?, NAF
In late 2010, on the eve of the Arab Spring uprisings, a Tunisian
blogger asked Egyptian activist Alaa Abdel Fattah what democratic
nations should do to help cyber­activists in the Middle East. Abdel
Fattah, who had spent time in jail under Hosni Mubarak's regime,
argued that if Western

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Wednesday, January 25, 2012

TPRC Call for Papers

TPRC, the 40th Research Conference on Communication, Information and
Internet Policy, is an annual conference on communication, information
and internet policy that convenes international and interdisciplinary
researchers and policymakers from academia, industry, government, and
nonprofit organizations. Its purpose is to present original research
relevant to policy making, share information about areas where
research is needed, and engage in discussion on current policy issues.
The conference program consists of presentations selected from
submitted paper abstracts, student papers, and proposals for panels,
tutorials, and demonstrations.

TPRC is now soliciting abstracts of papers, proposals for panels,
tutorials and demonstrations, and student papers for presentation at
the 2012 conference, to be held September 21-23, 2012 at the George
Mason University Law School , in Arlington , Virginia . These
presentations should report current theoretical or empirical research
relevant to communication and information policy.

Contributions may be from any disciplinary perspective – the sole
criterion is research quality. Topic areas in previous conferences
have included competition, antitrust, and other market issues;
broadband deployment and adoption; spectrum and wireless application
policy; media, old and new; intellectual property, technology, and
Internet law; privacy, security, identity and trust; governance and
institutions; innovation and entrepreneurship; and distributional
outcomes and social goals.

Submission opens on March 1, 2012 at http://www.tprc.org. The deadlines are:

March 31, 2012: Main conference abstracts, and proposals for panels,
tutorials and demonstrations. Acceptances/rejections will be provided
by May 31, 2012. Complete papers for accepted abstracts will be due to
TPRC on August 15, 2012.

April 30, 2012: Student papers. The student paper competition requires
submission of completed papers rather than abstracts.
Acceptances/rejections will be provided by June 30, 2012.

Details about submission require

Thursday, January 19, 2012

1.19 :: ██████████ :: ██████████ :: ██████████ :: ██████████ ::

CyberTelecom News
Federal Internet Law and Policy
The trouble with practical jokes is that very often they get elected. ~Will Rogers

Adopted rules governing the closed captioning requirements for the owners, providers, and distributors of video programming delivered using IP, and governing the closed captioning capabilities of certain apparatus on which consumers view video programming. (Dkt No. 11-154 ). Action by: the Commission. Adopted: 01/12/2012 by R&O. (FCC No. 12-9). MB

Federal body concludes LightSquared can't work with GPS, ITWorld
A committee overseeing GPS said interference can't be fixed in months or years and called for an end to testing

LightSquared says GPS interference testing was rigged, CNET
LightSquared, which plans to build a nationwide wireless broadband network, said that a government agency colluded with the GPS industry to find interference issues between GPS services and its own wireless broadband network.

LightSquared claims GPS industry rigged tests, CW
LightSquared's proposed mobile data network was set up to fail in tests of interference with GPS that were conducted last November under government auspices, the would-be cellular carrier charged on Wednesday.

Federal agency recommends killing LightSquared LTE plans, Gigaom
A federal agency may have just sounded the death knell for LightSquared's plans to build a nationwide LTE network. The National Space-Based Positioning, Navigation and Timing Executive Committee, otherwise known as PNT ExComm, has concluded that any LTE network LightSquared would build, no matter how much it scales back its transmission power, would interfere with GPS devices nationwide, IDG news reported.

Upton Reacts to FCC Chairman's Comments on Spectrum Legislation, House Commerce Committee
no description

Attempted Trademark Workaround to 47 USC 230 Immunity Fails Badly—Ascentive v. PissedConsumer [Catch-Up Post], Technology & Marketing Law
This is one of the top dozen or so most important Internet law opinions of 2011, but...

IPv6 net address launch day fixed, BBC
Leading internet firms set a deadline by which they must ensure that a set number of users can access the new net address system.

World IPv6 Launch Solidifies Global Support for New Internet Protocol, CISCO
Top websites, Internet service providers, and home networking equipment manufacturers commit to largest transition in the Internet's history

World IPv6 Launch, ISOC
Major Internet service providers (ISPs), home networking equipment manufacturers, and web companies around the world are coming together to permanently enable IPv6 for their products and services by 6 June 2012.

AT&T hikes data prices, caps for smartphones, CNET
While the company is offering more data per buck, the price increase raises the minimum bar for a first-time user.

Co-Founder Yang Resigns From Yahoo, WSJ
Yahoo said its co-founder Jerry Yang has resigned from its board, severing all ties with the company he founded about 17 years ago.

Golan v. Holder, Volokh Conspiracy
The Supreme Court has handed down its opinion in Golan v. Holder, holding Congress has the authority to restore copyrights in this country that had had lapsed. The vote was 6–2, with a majority opinion by Justice Ginsburg. A very quick skim suggests it is largely a replay of Eldred v. Ashcroft from 2003.

Congress Backs Off Anti-Web-Piracy Bill, NPR
Congress was poised to pass a bill restricting Internet transfer of copyrighted material but now seems to be backing off.

Internet Blackout Causes 18 Senators to Flee from PIPA, Forbes
It may have been a sight to behold as the internet helped topple governments in the Middle East last year, but yesterday it did something even more impressive. It caused bought Senators to change their minds on policy.

Obama Administration Responds to We the People Petitions on SOPA and Online Piracy, White House
The White House has responded to two petitions about legislative approaches to combat online piracy. In their response, Victoria Espinel, Intellectual Property Enforcement Coordinator at Office of Management and Budget, Aneesh Chopra, U.S. Chief Technology Officer, and Howard Schmidt, Special Assistant to the President and Cybersecurity Coordinator for National Security Staff stress that the important task of protecting intellectual property online must not threaten an open and innovative internet.

PIPA support collapses, with 13 new Senators opposed, Ars Technica
Members of the Senate are rushing for the exits in the wake of the Internet's unprecedented protest of the Protect IP Act (PIPA). At least 13 members of the upper chamber announced their opposition on Wednesday. In a particularly severe blow for Hollywood, at least five of the newly-opposed Senators were previously co-sponsors of the Protect IP Act. (Update: since we ran this story, the tally is up to 18 Senators, of which seven are former co-sponsors. See below.)

Thank You, Internet! And the Fight Continues, EFF
Today was a truly inspiring day in Internet history. Working together, we sent a powerful message to Big Media and the misguided proponents of the Internet blacklist legislation: we will not stand idly by and let you hamper innovation, kill jobs, wreak havoc on Internet security, and undermine free speech. Supporters of SOPA and PIPA say the Internet Blackout day was a "publicity stunt." We say it was a wake-up call.

Jon Stewart Now Knows About SOPA/PIPA... And He's Not Impressed, Techdirt
Remember how, based on an audience question, Jon Stewart promised to study up on SOPA/PIPA for a future show. Looks like that happened. And, apparently, he did his homework before Wednesday, so he could actually use Wikipedia. In last night's show, Stewart used yesterday's blackouts and protests as a jumping off point to discuss the bill. There were two main points: (1) Congress is trying to pass laws about an internet

We need to talk about piracy (but we must stop SOPA first), apophenia
Much to my happiness, the internets are in a frenzy about the "Stop Online Piracy Act" (aka SOPA). Congress is currently in recess, but the House announced a hearing on the potential impact to the Domain Name Service on January 18 and everyone expects the Senate to begin discussing a similar bill "PROTECT IP Act" when they return to DC on January 24. There's a lot to these bills – and the surrounding furor – and I'm not going to

DHS media monitoring could chill public dissent, EPIC warns, CW
The U.S. Department of Homeland Security is engaging in media monitoring activity that achieves no public safety goals and will likely have a chilling effect on legitimate criticism of the agency, a leading privacy advocacy group warned.

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Saturday, January 14, 2012

1.13 :: If you turned off the Internet :: Hoping to Expedite :: Sounds an Alarm :: Urges Action :: Way Off Target :: Move Forward ::

CyberTelecom News
Federal Internet Law and Policy
"Broadcast TV is living on borrowed time. It is not going to be long before it goes the way of vinyl records and 8 track tapes." - Justice Alito, FCC v Fox Oral Argument

Report Finds Broadband Investment Key to U.S. Competitiveness, USTelecom
As we focus on ways to enhance America's competitiveness and create jobs, a recent Department of Comm

CES Live: FCC Chair Genachowski Wants Ubiquitous Broadband, Forbes
If you turned off the Internet, virtually every single product on the 2012 International Consumer Electronics Show would be worthless.

Falcone Meets With FCC About LightSquared, DSLReports
Hoping to Expedite Government Approval Process

LightSquared seeks probe of GPS advisory board member, CW
LightSquared is seeking an investigation of a federal official involved in deciding whether the company can deploy its hybrid satellite-LTE network, saying he simultaneously serves on the board of a GPS company opposing the network.

At CES, FCC chair warns of mobile 'spectrum crunch'--for the third time, CNET
For the third year in a row, Julius Genachowski sounds an alarm over government failure to provide much-needed new spectrum for mobile broadband users. A solution seems closer, but only just barely.

FCC chairman urges action on spectrum auctions, CW
Julius Genachowski, chairman of the U.S. Federal Communications Commission, used his time on stage at the Consumer Electronics Show Wednesday to warn that if Congress doesn't let the agency move forward with its plans to free up more wireless spectrum, it risks damaging the economy into the future.

Student Free Speech Rights on the Internet: Summary of the Recent Case Law, Harvard JOLT
The most recent U.S. Supreme Court case to address the legality of school-imposed punishment for student expression was more than forty years ago in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). In that seminal case, the Supreme Court found that a state's interest in maintaining its educational system can justify limitations on students' First Amendment rights to the extent necessary to maintain an effective learning environment. Id. In Tinker, school officials suspended

NPR story on ICANN and Internet governance: way off target, IGP
National Public Radio in the U.S. did a feature piece on ICANN, presumably because January 12 is the day it starts its program to open up the domain name space to hundreds of new top level names. Yet what should have been a story about the pros and cons of new TLDs and ICANN's political struggles with U.S.-based intellectual property interests and the legislators they influenced, became yet another story about…wait for it… how the International Telecommunication Union (ITU) is threatening

U.S. gov't official: ICANN plan should move forward, CW
Calls for the U.S. government to halt a plan by the Internet Corporation for Assigned Names and Numbers (ICANN) to offer new generic top-level domains are shortsighted because they could lead to other countries attempting to exert control over ICANN, a U.S. government official said Wednesday.

Comcast Completes DNSSEC Deployment, Comcast
I am pleased to announce that Comcast, the largest ISP in the U.S., is the first large ISP in the North America to have fully implemented Domain Name System Security Extensions (DNSSEC). As part of our ongoing efforts to protect our customers, DNSSEC is now automatically included as part of Comcast Constant Guard™ from Xfinity.

Doomsday Clock Ticks Closer to Destruction, Forbes
The world inched closer to the apocalypse, as scientists moved the Doomsday Clock one minute closer to zero hour.

India OKs Prosecuting Web Firms for 'Unacceptable' Content, WSJ
India's communications ministry sanctioned the prosecution of Microsoft, Google, Yahoo and Facebook as well as 17 other companies over a complaint that their websites carry "unacceptable" content that could incite communal violence.

Iran Escalates Campaign Against Online Expression, EFF
The Iranian regime is doing everything they can to scare their citizens into silence. Ranked among the worst in the world in terms of online censorship, Iran has taken harsher, increasingly sophisticated steps to stifle free expression online and condemn the act of information sharing in light of increasing political and economic tensions. While a recent initiative to create a national "halal" Internet would essentially block Iranians from the outside world, last week the country's Ministry of Information Communication Technology (MICT) also issued regulations that force Internet cafés to install security cameras, document users' browsing history and usage

Time Is Running Out For SOPA Opponents Congressmen Warn At CES 2012, Forbes
Sen. Ron Wyden (D-Ore.) and Rep. Darrell Issa (R-Calif.) showed up at CES 2012 in Las Vegas to issue a stark warning: we're running out of time to stop legislation aimed at cracking down on copyright infringement.

The Texas Tribune: Anti-Piracy Bill SOPA, by Lamar Smith, Gets Texas Pushback, NYT
Technology companies and business advocates in Texas agree that online crimes are a problem, but they contend that Lamar Smith's SOPA bill would do more harm than good

Sen. Leahy bows to pressure, pledges to amend Protect IP bill, CNET
Patrick Leahy, the author of the controversial Protect IP Act, has bowed to public pressure and will delete the sections dealing with DNS blocking.

The Internet Goes to Washington on January 18, EFF
Security Experts and Tech Investors Scheduled to Testify; Worldwide Internet Protest Gathering

Paul Vixie Explains, In Great Detail, Why You Don't Want 'Policy Analysts' Determining DNS Rules, Techdirt
There's been plenty of talk, obviously, about the problems with SOPA and PIPA and how they treat DNS as a tool for blocking, despite the massive problems it causes for security efforts like DNSSEC. Every single working engineer who's spoken out on this issue (that we've seen, at least), has made this same point. We've even heard from techies within the government saying the same thing. And, of course, even Comcast itself (despite supposedly being in favor of the bill) proudly admits that DNS

Tim O'Reilly: Why I'm fighting SOPA, Gigaom
As the debate about the Stop Online Piracy Act (SOPA) rages on from Silicon Valley to Washington DC, a number of the technology industry's most influential leaders have come out against the proposed legislation, which would give the government and private corporations unprecedented powers to remove websites from the internet for any alleged copyright infringement.

Stewart Baker, Testifying Against SOPA
, Volokh Conspiracy
I will be testifying next Wednesday against SOPA, reprising my concerns about its impact on implementation of new web security protocols. I've blogged those concerns here and here. The hearings are being held by Darrell Issa (R-CA), chair of the House Oversight and Government Reform Committee, who is troubled by the Judiciary Committee's determination to take SOPA to the floor without hearing from witnesses on this issue. More details here.

FedRAMP cloud computing standards initiative spurs optimism, criticism, SearchCloudSecurity
Industry experts and cloud service providers are hopeful about the prospects of a new federal program that sets cloud computing security standards, but they also note some potential pitfalls. For one security expert, the program represents a lost chance to improve cybersecurity.

FCC's Genachowski to Congress: Leave us alone, CNET
While speaking at CES 2012 in Las Vegas, FCC Chairman Julius Genachowski pushes the need for universal broadband and the incentive auctions to make it happen.

Stewart Baker, Volokh Conspiracy Scoops Drudge, The Atlantic, and Reuters by ... Two Years, Volokh Conspiracy
Matt Drudge and The Atlantic are hyperventilating, and Mark Hosenball of Reuters is bragging, about what The Atlantic calls an "exclusive" report that DHS "routinely monitors dozens of popular websites, including Facebook, Twitter, Hulu, WikiLeaks and news and gossip sites including the Huffington Post and Drudge Report."

Military Networks 'Not Defensible,' Says General Who Defends Them, Wired
The Defense Department's networks, as currently configured, are "not defensible," according to the general in charge of protecting those networks. And if there's a major electronic attack on this country, there may not be much he and his men can legally do to stop it in advance.

FCC Seeking More Comment on Allowing VoIP Providers Direct Access to Numbers, Telecom Law Monitor
With new access charge obligations for interconnected VoIP, new contribution obligations for non-interconnected VoIP, and possible outage reporting requirements, 2012 is shaping up as a year of changes for VoIP providers. Another possible change may be in store for how VoIP providers obtain access to telephone numbers

VoIP Access Charge Appeal To Proceed After Nearly Two Year Delay, Telecom Law Monitor
A long time ago, we posted about a decision of the US District Court in DC declaring that VoIP traffic was not subject to access charges and the strange coalition that asked the Court of Appeals to review the case. Now, after a nearly two year delay caused by one of the litigants' bankruptcy, the appeal is moving forward. Since the FCC refuses to rule whether access charges applied to VoIP (even as it has recently applied interstate access rates to VoIP prospectively), this case could have an important impact on many current access charge disputes.

Skype is killing long distance, one minute at a time, Gigaom
The Internet is a great deflator, squeezing out the middlemen and lowering prices. The shifting fortunes of Wall Street brokers and travel agents are good examples. However, the Internet's deflationary impact is on full display in the international long-distance market, where Skype has started to take away any and all growth from the phone companies.

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Cybertelecom is Off-the-Record. Otherwise play nicely.

Link to us! www.cybertelecom.org

Tuesday, January 10, 2012

1.10 :: Relentless :: Screams Conspiracy :: Romeo & Juliet :: Censorship is Freedom :: Got Copper? :: Random Thoughts ::

CyberTelecom News
Federal Internet Law and Policy
My great concern is not whether you have failed, but whether you are content with your failure. – Abraham Lincoln

Update: FCC Invites Comments on Recon re New iTRS Rules, CommLawBlog
Last August we reported on new rules imposing a number of restrictions on providers of Internet Telecommunications Relay Service (iTRS). Those rules took effect in October, but if you have an interest in iTRS, heads up. A petition for reconsideration of the new rules was filed, and the deadline for commenting on, or opposing, the petition has just been announced.

Cox Joins the Rate Hike Party - As Cable's Relentless Price Increases Continue, DSLReports
Cable rate hike season continues right into the new year, and it seems likely you'll soon be able to enjoy the festivities all year round. Users in several Cox markets in our forums note they've been informed of price hikes on numerous TV, DVR and phone-related services. A letter sent to users in Florida and Arizona notes that

LightSquared screams 'conspiracy' over leaky test results, Register
LightSquared's CEO is demanding an investigation into how draft test results on its technology were leaked from a government-assigned testing house to Bloomberg.

LightSquared's Travails Mount, Radio World
LightSquared's troubles are mounting with lawmakers and regulators lining up against the company's proposed satellite-terrestrial LTE wireless broadband network.

Commerce COMPETES Report: BTOP is Building Infrastructure for the 21st Century, NTIA
The U.S Department of Commerce today released a comprehensive report on "The Competitiveness and Innovative Capacity of the United States."

Romeo and Juliet Online and in Trouble: Criminalizing Depictions of Teen Sexuality (c u l8r: g2g 2 jail), Northwestern J of Tech and IP
Consider the tales of Alice and Bob, and Carol and Dave, two sets of young lovers. Alice and Bob decide one night, in the midst of their lovemaking, to memorialize the event and take some racy—but not obscene—pictures with Bob's cell phone.

U.S. Government Threatens Free Speech With Calls for Twitter Censorship, EFF
EFF has witnessed a growing number of calls in recent weeks for Twitter to ban certain accounts of alleged terrorists. In a December 14th article in the New York Times, anonymous U.S. officials claimed they "may have the legal authority to demand that Twitter close" a Twitter account associated with the militant Somali group Al-Shabaab. A week later, the Telegraph reported that Sen. Joe Lieberman contacted Twitter to remove two "propaganda" accounts allegedly run by the Taliban.

ACPA Part 5: The Elements of a Cause of Action (Bad Bad Faith), Cybertelecom
In order to succeed on an AntiCybersquatting Consumer Protection Act cause of action, a Trademark Owner (TMO) must establish: the TMO has a valid distinctive or famous trademark entitled to protection; the domain name and the trademark are either identical or confusingly similar (or dilutive for famous trademarks); the domain name owner used, registered, or trafficked in the domain name; with

US House Committee Announces Oversight Hearing on DNS and Search Engine Blocking, CircleID
House Committee on Oversight and Government Reform Chairman Darrell Issa today announced that the Full Committee will hold a hearing on January 18 to examine the potential impact of Domain Name Service (DNS) and search engine blocking on security, jobs and the Internet community. The Committee will hear testimony from cybersecurity experts and others from the technology community.

BT Telco is worth less than its expensive assets, Register
Attention metal thieves: Buy BT, get 75 MILLION miles of copper

WISPs vs Telcos, Wireless Cowboys
Random thoughts about the WISP industry on a Friday: The entire WISP industry is in many ways a giant collaborative project. Many of the early WISP pioneers did not have any kind of background in RF or wireless communications. The initial core of pioneers were independent ISPs that were disgusted with how the telcos [...]

U.S. To Twitter: Stop Sleeping With The Enemy, Forbes
The love affair between Twitter and the U.S. government is in danger of crashing as spectacularly as a celebrity relationship: with tears, disavowals, a chorus of "I told you so"s, and, of course, lawsuits. Like the Demi Moore - Ashton Kutcher (both popular Twitterati) breakup, the reason is alleged infidelity. In Twitter's case it's worse

Iran squeezes Web surfers, prepares censored national intranet, CNET
Iran is reportedly testing a domestic intranet and requiring identification and monitoring in Internet cafes in the interim. Just like China!

Al Gore Comes Out Against SOPA/PIPA, Techdirt
Well, check this out. Al Gore has come out strongly against SOPA and PIPA, angrily denouncing the bill and its supporters. It's a quick 2-minute video taken at a CareerBuilder event, and it's in response to an audience question. The actual question isn't heard in the video, but he's clearly talking about SOPA/PIPA and appears to be well-informed on the issue:

SOPA and PIPA are not dead. More action needed, Barry Law
Despite recent hearings in which sponsors admitted that more research is needed, these bills are far from dead and are still being pushed hard by special interest groups. Make no mistake, these bills require content filtering and blocking of certain sites at the DNS level based on allegation alone. Please read the below article, which brilliantly distills the issues and indicates why these bills are so dangerous.

ICE Propaganda Film Pats Itself On The Back For Censoring The Web; Promises Much More To Come, Techdirt
Homeland Security's ICE (Immigration & Customs Enforcement) group has put out a slickly produced video patting itself on the back for all of its work censoring the web in 2011, and promising much more of that kind of thing in the future:

Why SOPA and PIPA are bad, Peerflow
Tom Evslin wrote on Fractals of Change at some unknown data, SOPA and PIPA are Bipartisan Bad Policy, Really Bad Policy

The News Networks' SOPA Blackout, Save the Internet
You may have heard about the Stop Online Piracy Act, or SOPA. Simply put, this Web-censorship bill in the House could open the door to widespread Internet censorship.

Rep. Paul Ryan Comes Out Forcefully Against SOPA After Reddit Pumps Up Opposing Candidate, Techdirt
This is kind of interesting. You may recall that, last month, when Reddit was casting about for a pro-SOPA candidate to oppose (along with an opponent they could back), for a little while they picked Rep. Paul Ryan. The Reddit community was actually looking for a politician who had supported both the NDAA and SOPA, and originally chose Ryan. This actually turned out to be a mistake, because Ryan did not support SOPA and his campaign quickly pushed out a statement to that effe

'Nerds' Finally Get Their SOPA Hearings Over Technical Impact... But Not At The Judiciary Committee, Techdirt
While Lamar Smith and the House Judiciary Committee still have refused to hear from the actual technology experts, Rep. Issa has now scheduled a SOPA-related hearing... in his House Oversight Committee, and it will finally allow tech experts to speak about the technological impact of SOPA. It's a good list of speakers including: famed security researcher Dan Kaminsky (who co-authored the paper about problems of SOPA with Paul Vixie and others), Stewart Baker (former

Co-Chair Of Congressional Cybersecurity Caucus Says SOPA Would Interfere With Online Security, Techdirt
The opposition in Congress against SOPA continues to grow. The latest is a big one: the co-chair of the Congressional Cybersecurity Caucus, Rep. Jim Langevin, has come out against SOPA, stating his fears that the bill would negatively impact "security and openness" online. He noted that it "would interfere with efforts to increase transparency and security online" and specifically noted that it would undermine DNSSEC and similar efforts that "help increase trust online."

Spain's Ley Sinde: New Revelations of U.S. Coercion, EFF
While U.S. officials are scrambling to pass domestic Internet censorship legislation in the name of curbing copyright infringement, they've been much more effective in their efforts to export these laws abroad. Previously, we've examined US attempts to pressure the prior Spanish presidential administration to enact harsh copyright laws. A new letter reported by the Spanish newspaper, El Pais, reveals that the U.S. government didn't miss a beat when they renewed their threat to put in place

U.S. Pressures Spain Into SOPA Style Law, Geist
Canadians are familiar with U.S. pressure on intellectual property laws, but it is worth remembering that we are not alone. The latest target is Spain, with new revelations of U.S. threats of retaliation if Spain did not pass U.S. backed copyright rules.

NPR, Ford sync up with AppLink technology (live blog), CNET
Ford's Sync AppLink technology will bring NPR streaming news "straight to the dashboard."

Privacy in the Cloud; Going Beyond the Contractual Paradigm, ACSAC
Human life today has become entangled in the Internet. We access e-mail, store content, and use services online without a thought as to where data reside or how data are protected. The "cloud," a conceptualization of how data reside on the Internet rather than

Privacy Rights Clearinghouse Unveils New Privacy Complaint Form, EFF
The Privacy Rights Clearinghouse, a nonprofit consumer advocacy and education center based in San Diego, recently launched a new tool to give users a way to speak out about privacy concerns. Privacy Rights Clearinghouse is inviting individuals who have questions about consumer privacy issues, or who are upset about privacy-invasive practices, to use this online form to submit complaints.

Carrier IQ Litigation: Does Data Gathering on Phones violate Federal Wiretapping Laws?, Law, Technology & Arts
Recently, Carrier IQ has come under scrutiny for the vast amounts of data it gathers from cell phone users. A cell phone analytics company, Carrier IQ claims it's software is installed on over 141 million devices. Apparently, the software is mostly on phones from AT&T, Sprint, and T-Mobile. This software has the ability to gather vast amounts of data from users, including logging keystrokes, user location, and telephone calls. For example, the software can track what websites a person visits,

EPIC Asks FTC To Investigate "Timeline", Daily Dashboard
Forbes reports on concerns from the Electronic Privacy Information Center (EPIC) that Facebook's "Timeline" redesign could violate the social network's recent settlement with the Federal Trade Commission (FTC). EPIC is asking the FTC to investigate, questioning if "reducing 'privacy through obscurity' is a privacy

Citations to 18 U.S.C. 1030, the Computer Fraud And Abuse Act, Volokh Conspiracy
I've often blogged about the scope of the Computer Fraud and Abuse Act, 18 U.S.C. 1030, the federal "unauthorized access" statute. This graph of the number of annual judicial citations to the statute from 2002 to 2011, from Westlaw's ALLFEDS database, helps explain why I think it's an important issue:

2012 TPRC Announcement, Cybertelecom
FROM TPRC CENTRALMark your calendars! TPRC 2012: 40th Research Conference onCommunications, Internet and Information Policy will be held September21-23, 2012 at George Mason University School of Law in Arlington, VA.

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Twitter & Facebook :: Cybertelecom
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Cybertelecom is Off-the-Record. Otherwise play nicely.

Link to us! www.cybertelecom.org

Monday, January 09, 2012

2012 TPRC Announcement


Mark your calendars! TPRC 2012: 40th Research Conference on
Communications, Internet and Information Policy will be held September
21-23, 2012 at George Mason University School of Law in Arlington, VA.

The call for papers for this year's conference will be available the
end of January. Abstract submissions will begin March 1 with a
deadline of March 31. Information concerning panel proposals,
demonstrations and the student paper contest will be included in the
call for papers.


TPRC is switching to the SSRN (the Social Sciences Research Network)
conference and archiving system this year. Abstracts and papers will
be submitted via SSRN, and accepted papers will be accessible in the
SSRN eLibrary. The TPRC archive of papers will also be migrating to
the SSRN eLibrary. This will provide wider visibility and better
searchability. The papers will be identified as TPRC conference

If you are concerned about SSRN listing of a paper that you presented
at TPRC, there are two options: (1) you may go to ssrn.com and mark
the paper as private, which will remove it from the publicly
searchable space, or (2) you may contact TPRC to have your paper
marked as private or remove it from the archive altogether.

As part of the process of moving our archive to SSRN, you will receive
a notification from SSRN when your archived paper has been uploaded.
We will be archiving from 2011 backwards and this may take several
months. Emails used to establish SSRN accounts for TPRC authors are
solely used in conjunction with TPRC.

ACPA Part 5: The Elements of a Cause of Action (Bad Bad Faith)

In order to succeed on an AntiCybersquatting Consumer Protection Act cause of action, a Trademark Owner (TMO) must establish:
  • the TMO has a valid distinctive or famous trademark entitled to protection;
  • the domain name and the trademark are either identical or confusingly similar (or dilutive for famous trademarks);
  • the domain name owner used, registered, or trafficked in the domain name;
  • with a bad faith intent to profit from the mark.
15 U.S.C. § 1125(d). See, e.g., DSPT Int'l, Inc. v. Nahum, 624 F3d 1213 (9th Cir. 2010); Bavaro Palace, S.A. v. Vacation Tours, Inc., 203 F. App'x. 252, 256 (11th Cir. 2006). 

Nine, Count Them, Nine Bad Faith Elements

The focus of this paper is the last element: bad faith.  There were a number of other trademark and domain name disputes that Congress was aware of at that time which included gripe sites, registration of multiple domain names not specifically associated with trademarks, the use of trademarks in metatags or on websites generally, and other quibbles.  Congress had the opportunity to create a nice neat law targeting relief for TMOs from nefarious cybersquatters, without touching upon other controversies.   The ACPA was designed to address the problem of cybersquatting, not other tiffs.

But Congress had to give the courts the means to distinguish the nefarious from the non-nefarious.  Thus, Congress handed down the Nine Bad Faith Factors. 
 (B) (i) In determining whether a person has a bad faith intent described under subparagraph (A), a court may consider factors such as, but not limited to—
(I)   the trademark or other intellectual property rights of the person, if any, in the domain name;
(II)  the extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person;
(III) the person’s prior use, if any, of the domain name in connection with the bona fide offering of any goods or services;
(IV) the person’s bona fide noncommercial or fair use of the mark in a site accessible under the domain name;
(V)  the person’s intent to divert consumers from the mark owner’s online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;
(VI) the person’s offer to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services, or the person’s prior conduct indicating a pattern of such conduct;
(VII) the person’s provision of material and misleading false contact information when applying for the registration of the domain name, the person’s intentional failure to maintain accurate contact information, or the person’s prior conduct indicating a pattern of such conduct;
(VIII) the person’s registration or acquisition of multiple domain names which the person knows are identical or confusingly similar to marks of others that are distinctive at the time of registration of such domain names, or dilutive of famous marks of others that are famous at the time of registration of such domain names, without regard to the goods or services of the parties; and
(IX) the extent to which the mark incorporated in the person’s domain name registration is or is not distinctive and famous within the meaning of subsection (c).
15 U.S.C. § 1125(d)(1)(B)(i).

There is no particular manner in which a court has to consider these factors, nor is a court limited to or required to follow these factors – they are merely guidelines. These factors are designed to balance the interests of TMOs with the legitimate interests of individuals on the Internet.32  In explaining how to proceed with a bad faith analysis, Congress stated
Each of these factors reflect indicators that, in practice, commonly suggest bad-faith intent or a lack thereof in cybersquatting cases. The Committee understands that the presence or absence of any of these factors may not be determinative. For example, while noncommercial uses of a mark, such as for comment, criticism, parody, news reporting, etc. * * *, are beyond the scope of the bill's prohibitions, the fact that a person uses the domain name at issue in connection with a site that makes a noncommercial or fair use of the mark does not necessarily mean that the domain name registrant lacked bad faith. To recognize such an exemption would eviscerate the protections of the bill by suggesting a blueprint for cybersquatters who would simply create criticism sites in order to immunize themselves from liability despite their bad-faith intentions. By the same token, the fact that a defendant provided erroneous information in applying for a domain name registration or registered multiple domain names that were identical to, confusingly similar to, or dilutive of distinctive marks does not necessarily show bad-faith. The Committee recognizes that such false information may be provided without a bad-faith intent to trade on the goodwill of another's mark, and that there are likely to be instances in which multiple domain name registrations are consistent with honest business practices. Similar caveats can be made for each of the eight balancing factors, which is why the list of factors is nonexclusive and nonexhaustive. Courts must ultimately weigh the facts of each case and make a determination based on those facts whether or not the defendant registered, trafficked in, or used the domain name with bad-faith intent to profit from the goodwill of the mark of another.
The AntiCybersquatting Consumer Protection Act, Report 106-140, 106th Cong., 1st Sess., p. 8 (Aug. 5, 1999).

The nine factors do not covered every unique fact pattern before the courts.  The Courts, therefore, have concluded that they may examine and consider the unique factors of each case. It is ultimately up to each individual court how it weighs these different factors.  "The role of the reviewing court is not simply to add factors and place them in particular categories, without making some sense of what motivates the conduct at issue. The factors are given to courts as a guide, not as a substitute for careful thinking about whether the conduct at issue is motivated by a bad faith intent to profit." Lucas Nursery & Landscaping, 359 F. 3d at 811 (6th Cir. 2004).

Next Up:  The Bad Faith Scorecard

Friday, January 06, 2012

2.6 :: A Targeted Solution :: Military Concerns :: $37.2 Billion :: Dont Censor the Internet :: Spying :: Triggering :: What 4th Amendment?? :: Good Dog ::

CyberTelecom News
Federal Internet Law and Policy
Only one thing is impossible for God: to find any sense in any copyright law on the planet. - Mark Twain's Notebook, 1902-1903

Defense Bill Puts Pressure on FCC, LightSquared, Forbes
A clause buried in the defense spending bill prevents the FCC from allowing LightSquared to proceed until military concerns are addressed.

U.S. Online Holiday Shopping Season Reaches Record $37.2 Billion for November-December Period, Up 15 Percent vs. Year Ago, comScore
comScore (NASDAQ : SCOR), a leader in measuring the digital world, today reported that retail e-commerce spending for the entire November – December 2011 holiday season reached $37.2 billion, marking a 15-percent increase versus last year and an all-time record for the season. Ten individual shopping days this season surpassed $1 billion in spending, led by Cyber Monday – which ranked #1 for the second consecutive year – at $1.25 billion.

2011 Domain Name Year In Review: Top 10 Biggest Domain Stories, CircleID
Who would have ever believed that .XXX would finally be approved AND launched, total domains registrations would continue to grow at 10% year over year, ICANN would be in the process of preparing for the launch of new gTLDs in the face of harsh criticism, and that both Go Daddy and Group NBT would be acquired by private equity firms.

The Future of the Internet - Who Decides?, CSIS
On January 12, ICANN will launch the largest domain name expansion since the creation of the Internet. Rod Beckstrom, CEO of the Internet Corporation for Assigned Names and Numbers (ICANN) will discuss this global achievement, ICANN's multi-stakeholder model that made it possible, and the rapid internationalization of the Internet.

ACPA Part 4: A Targeted Solution, Cybertelecom
In response to the tales of horrors, Congress enacted the AntiCybersquatter Consumer Protection Act. According to the Legislative History, "The purpose of the bill is to protect consumers and American businesses, to promote the growth of online commerce, and to provide clarity in the law for TMOs by prohibiting the bad-faith and abusive registration of distinctive marks as

Vint Cerf: Internet Access Not a Human Right But Only Means to an End, CircleID
Technologies such as the Internet should be viewed as enabler of rights, not a right itself says Vint Cerf (CircleID) in an op-ed piece in The New York Times. He writes: "The best way to characterize human rights is to identify the outcomes that we are trying to ensure. These include critical freedoms like freedom of speech and freedom of access to information — and those are not necessarily bound to any particular technology at

US State Dept: Don't Censor The Internet! Unless We Order You To, As We Did In Spain..., Techdirt
We've discussed how the State Department, and Hillary Clinton in particular, have been spending a lot of time talking up the importance of internet freedom, and speaking out against countries that censor the internet. That even resulted in Joe Biden's unintentionally hilarious explanation of why internet censorship is horrible... while he supports internet censorship at home.

Thailand Continues Massive Crackdown of Online Speech, EFF
In Thailand, details of the most recent victim of lèse majesté laws emerged this week, adding to a long year of crackdowns on free speech in the country. Alongside the news coverage, Freedom Against Censorship Thailand (FACT) published new analyses demonstrating the magnitude of measures the Southeast Asian state has taken to block websites it deems politically offensive.

US music sales increased in 2011, BBC
US music sales increased last year for the first time since 2004, according to figures released by Nielsen Soundscan.

Why the ESA is Wrong to Support SOPA, Forbes
The Entertainment Software Association has reasserted their support of the anti-piracy legislation currently being debated in congress. The ESA's members include giants in the video game and software industry such as Nintendo, Sony, EA and many more. Earlier reports suggesting some of these companies had withdrawn support from SOPA have turned out to be false.

Quote of the Day: Handle The Internet With Care, Forbes
"A 14-year-old girl can walk into a mobile phone shop on Saturday and walk out a broadcaster, with no training, with no intuitive knowledge."

Lawmakers seem intent on approving SOPA, PIPA, CW
Congress appears likely to move forward with two controversial copyright enforcement bills this year, even with vocal and widespread opposition to the Stop Online Piracy Act and the Protect IP Act in the Internet community.

Cato Institute Digs Into MPAA's Own Research To Show That SOPA Wouldn't Save A Single Net Job, Techdirt
One of the things we've noticed in the debate over SOPA and PIPA is just how the other side is really lying with statistics. We've done a thorough debunking of the stats used by the US Chamber of Commerce to support both bills, as well as highlighted the misleading-to-bogus stats used by Lamar Smith in his support of the bill.

Analyst: Netflix is the 15th largest TV 'network' in US, Lost Remote
Americans spend a lot of time watching Netflix -- we've all heard the stories of how much bandwidth it eats up -- and one analyst has crunched the numbers with some surprising results. If Netflix were a network, it would rank 15th in total minutes watched, explains Richard Greenfield with BTIG. "Netflix streaming usage is exploding and is far, far bigger than traditional media executives give

Comcast, Disney Expand Web Shows, WSJ
A new deal between Comcast and Disney adds momentum to industry efforts to put Web versions of some TV shows and channels behind subscription walls.

FCC names Zachary Katz as chief of staff, WAPO
Federal Communications Chairman Julius Genachowski announced Thursday that he will appoint the agency's chief counsel, Zachary Katz, as chief of staff, effective at the end of the month.

Outsmarting Your Spying Smartphone, NPR
That shiny new smartphone you got for Christmas boasts cool features and games, but buried deep in the software are tools that collect personal information. What exactly is being collected, and how should you take caution? Host Michel Martin speaks with John Verdi, senior counsel for the Electronic Privacy Information Center.

W Curtiss, Triggering a Closer Review: Direct Acquisition of Cell Site Location Tracking Information and the Argument for Consistency Across Statutory Regimes, Columbia
The recent proliferation of location-based technology and services for cell phones have many wondering if society has forfeited its reasonable expectation of privacy in personal location. Further, the ability of police investigators to accurately track criminal suspects has provided a popular,

FPF Comments on Proposed COPPA Rule, FPF
FPF submitted comments to the FTC on proposed amendments to the Children's Online Privacy Protection Act. FPF commends the FTC's commitment to protect the privacy of children in a rapidly developing online marketplace. FPF's comments focus on amendments affecting those areas that correspond with the organization's specific expertise and experience, namely: (I) The proposal to [...]

C Wolf, The role of government in commercial cybersecurity, ITU WT
Privacy consists of two components: (1) conforming one's collection, use, and sharing of personal data to existing laws and norms, and (2) securing the data against unauthorized access and
use. Even with the best of intentions as to the treatment of personal data, there can be no privacy where there is no data security. With

Judge: GPS Tracking Warrant Unnecessary, Daily Dashboard
A federal judge in Missouri has ruled that the FBI did not need a warrant to place a GPS tracking device on a suspect's car. The tracking device was employed by the FBI because the defendant was suspected of inaccurately filling out time sheets as a St. Louis treasury employee. According to a report in Wired, Magistrate David Noce said the defendant did not have any "reasonable expectation of privacy in the exterior" of

Federal Court Revives Suit Over NSA Dragnet Surveillance, EPIC
A federal appeals recently revived a lawsuit, Jewel v. NSA, challenging the NSA's use of the nation's largest telecommunication providers to conduct suspicionless surveillance of Americans. The three-judge panel reversed a lower court decision that rejected claims based on lack of standing. The case will now return to the district court for a decision on the merits. The same three-judge panel also rejected a related suit against

PAWS dog rescue camera could save your life, CNET
ZRescue dogs may soon be outfitted with a new camera system that can assist emergency crews in recovery missions. CNET UK has the story.

Righthaven Fails To Show Up In Court As Ordered... When Confronted Says It Got Confused Over The Date, Globe
U.S. wireless firms start charging higher service fees in response to free texts from iMessenger, BBM, Twitter and even Facebook's mobile messenger

Apply for the Google Policy Fellowship and Work with EFF This Summer!, EFF
If you're a student passionate about what we do here at EFF, what better way to spend your summer than to work with us on Internet and tech policy? 2012 is the 5th year we've offered the Google Policy Fellowship, an opportunity for undergraduate, graduate, and law students to work alongside the international Policy team on projects advancing debate on key public policy issues.

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