Being a reasonably intelligent fella I recognize there are few absolutes other than certain death. That is especially true with rolling the dice in the American Judical system. That is something that Universal should have kept in mind –

In what Fogel said was a “case of first impression,” Universal attorney Kelly Klaus said Universal or other copyright holders are not liable for damages when somebody asserts fair use to reverse a takedown notice.

Klaus and the judge agreed that damages have been awarded when a sender of a takedown notice falsely represents copyright ownership. But in this case, Universal owns the rights to Prince’s song.

“Are you saying there cannot be a misuse of a takedown notice if the material is copyrighted?” Fogel asked Klaus.

“I don’t think ‘fair use’ qualifies,” Klaus answered.

In the preliminary the judge rules –

“Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright,” U.S. District Judge Jeremy Fogel ruled. “Accordingly, in order for a copyright owner to proceed under the DMCA with ‘a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,’ the owner must evaluate whether the material makes fair use of the copyright.”

Another words the judge handed the Universal lawyers their heads in their hands. The trial still has to be wound out to conclusion but the judge has suppressed the basis of Universal’s primary defense against civil penalities.

But the impact of the preliminary ready by the judge will have impacts. If upheld on appeal the landscape will change radically. No longer can a copyright holder issue roboC&D’s. They will have to consider if the use falls under the umbrella of Fiar Use. Endgame? If Universal loses, then unless it can be proven that money changed hands copyright holders will have to give any use that is Fair Use a wide berth. They will also have to spend $$ to determine if it is Fair Use not the user. [Though users would be dumb not to so structure their use to meet Fair Use provisions.]

Linky

Verizon ends up in the top of the list of companies associated with consumer fraud. This is according to information gathered by the School of Law, Berkley California. The data was obtained from the FTC for he period 2006-07, the latest available. To be fair, lets make one thing clear — Verizon itself is not doing the defrauding.

In 2007, fraud events where the victim could identify the institution associated with the incident, were concentrated among a relatively small number of companies. Just ten companies accounted for 30% of events. Verizon was identified by victims more than any other company as being targeted by impostors to commit fraud. AFNI, a collections agency, was next in total number of events. Bank of America improved dramatically over its 2006 numbers, while ING Bank and American Express remained top performers among large institutions.

If Verizon is not doing the defrauding then how are they associated with those that are? Lack of caring in a sense. There are many ways to be a conduit. Social Engineering attacks are most preveleant. Party X says they are moving, gives new address which is theirs, promises to request disconnect at old address once moved. They receive the latest billing at the ‘new’ address. The thief now has all the data they need to scam like a bandit. The real phone holder won’t know for a month or more till the miss a billing cycle. By then it is too late. Open systems are another. We’re all human and even Sys Admins get tired and make mistakes. A system gets compromiszed on the DMZ and wham all sorts of data is disclosed. Gateway traffic in the clear is another. Having a laptop stolen that is not encrypted is another. 12000 laptops get stolen every WEEK in this country. Many carry sensitive data when they should not.

Keep one other item in mind. VZ has cut POTS network services to the bone. So there is not a lot of incentive right now to improve security in that area. Verizon is another of those companies that ‘take seriously’ (God I hate that line!) the missives that occur. The fact is they need to try harder. A trashed brand is a tough thing to get out of, ask Comcast.

Linky.

With separate field test successes and roll out announcements coming from both Sprint and Clearwire, AT&T must beginning to believe that a nation wide WiMax really will work. A new network that is an open, wholesalable, mobile and a simple, dumb pipe could really throw a wrench into AT&T’s plans to roll out usage caps and overage charges, not to metion triple play. True to form, the Death Star has chosen to use to lawyering and lobbying at the FCC to kill competition rather than playing fair and competing.

The company has provided Ars with a copy of yesterday’s FCC filing in which AT&T argues that the deal needs more scrutiny. An AT&T spokesperson tells us that the company “does not fundamentally oppose the underlying transaction,” but it does say that Sprint and Clearwire “should be required to demonstrate that its merger serves the public interest just like any other providers would have to do.” Until that happens, the deal should be put on hold.(Ars Technica)

The FCC should dismiss this without fanfare. AT&T should be fined heavily for using the agency as part of a ploy to stifle competition.

Recently, after years of sucking up USF and other government subsidies, the big 3 telcos have been selling off rural systems rather than making the improvements the subsidies were to have funded. This has brought about a small wave of Telco upstarts who now operate many of America’s rural systems. One of them is TDS.

While TDS has made some improvements since taking over, Monticello, MN citizens want FTTH service instead of the meager 3MBPS DSL TDS provides. True to telco monopoly form, instead of providing a fiber network, TDS sued when the city decided to build it’s own. Unlike many small cities who have buckled under the deep pocketed telco lawyering, Monticello is fighting back.

Quoting ILSR Spokesperson Brooke Gullikson:

Monticello has filed a motion to dismiss the lawsuit preventing it from building the fiber optic network 74% of voters supported in a referendum last fall.

TDS, the incumbent telephone provider in Monticello, rebuffed solicitations from the City to build a fiber network before filing a complaint to prevent the City from building its own network.

Minnesota Statute 475.52 gives cities the right to bond for a variety of projects, from public buildings to sidewalks to wastewater treatment plants. The language is quite broad, granting bonding authority “for any utility or other public convenience from which a revenue is or may be derived.”

“TDS wants the court to believe that a fiber optic network offering telephone, Internet access, and cable television is neither a utility nor a public convenience,” says Christopher Mitchell, Director of the Telecommunications as Commons Initiative for the Institute for Local Self-Reliance (ILSR). “Incumbent providers across the United States file these frivolous lawsuits to prevent communities from breaking their monopoly.”

The second piece of the complaint alleges that part of the bond will be used to pay ‘current expenses.’ MN statute proscribes bonding for current expenses. The city of Monticello has responded that it will be well within the law when using bond proceeds.

“Consider a community using revenue bonds to build a swimming pool. The community must hire employees before it generates a dollar of revenue,” Mitchell continues, “these startup costs have never been considered ‘current expenses’ and Minnesota Supreme Court has said as much.”

Mitchell researches publicly owned broadband networks nationwide, and has followed in the Monticello lawsuit from the beginning.

“If our ancestors accepted TDS’ position – and there were many companies making the same points 100 years ago – electricity would still not have reached many rural areas, leaving us much worse off as a country,” explains Mitchell. “We hope the court rapidly dismisses this frivolous lawsuit and allows the democratic process in Monticello to continue”.

We enthusiastically support the citizens of Monticello in getting what most US broadband users only dream about, world class access. The presiding judge should throw out the TDS suit without delay.

editorial note: while we agree with the ISLR’s views on this issue, we do not endorse most of their policies or initiatives.

In a very comprehensive article Extra, extra, read all about it - or, sadly, not @ Comment, John Ibbitson covers the woes of the current pulp media –

That’s about to change. Across the United States, newspaper revenues are declining, along with circulation. As the American economy totters on the edge of recession, those declines are becoming precipitous and more pronounced than elsewhere. The Newspaper Association of America reports that classified newspaper advertising shrank by 16.5 per cent in 2007.

Circulation declines are also accelerating: Nationwide, newspaper circulation as of March 31 was down 3.6 per cent from the same time the year before; the year before that, it was down only 2.1 per cent. The Standard & Poor’s Publishing & Printing Index is declining at three times the rate of decline of the S&P 1500.

The Sunday edition of The New York Times is arguably the best newspaper in the world. Its circulation has declined almost 10 per cent in the past year alone, although part of the reason was management’s decision to cut back on discounted papers.

We have covered that before of course no new news there. But what will survive/replace the pulp media?

Small town Editions

More on Pulp is Dead, Its Just Not Buried

What’s worse than a misguided new requirement that every cell tower have a backup generator? How about a judge who can’t decide how to rule on the appeal? Reacting in the “public interest” after hurricane Katrina, faceless FCC bureaucrats demanded that cell towers have backup generators. Never mind that if they had existed, the said generators would be under water in the areas that lost service during the hurricane, rendering them useless. The appeal to overrule the FCC should have been granted immediately.

A federal appeals court on Tuesday put off deciding on the wireless industry’s challenge to the regulations until the Federal Communications Commission gets preliminary clearance for the rules.

After a panel of experts appointed by the FCC pointed out that many cell towers along the Gulf Coast stopped working when they lost power during Hurricane Katrina, the agency proposed in May 2007 that all cell towers have a minimum of eight hours of backup power that would switch on in the event a tower lost its regular energy source.

The loss of power contributed to communication breakdowns that complicated rescue and recovery efforts during the 2005 disaster.

Wireless companies have said the regulations were illegally drafted and would present a huge economic and bureaucratic burden. In particular, they said, the thousands of generators or battery packs required would be expensive and local zoning rules or structural limitations could make installation impossible in some places.

The FCC agreed in October to exempt cell sites that a wireless carrier proved couldn’t meet the rules. The FCC would give companies six months to report on the feasibility of installing backup power and another six months either to bring sites into compliance or explain how they would provide backup service through other means, such as portable cellular transmitters. (Yahoo)

The best laid plans of the Pols have yet again been placed asunder. That bipartisan effort to ‘cure’ campaign finance, BCRA, will be totally destroyed by this. BCRA puts a gag order 30 days before an election. It was generally targeted at 527 groups and other financially well healed political groups.

SaysMe is where individuals come to voice their own opinions on TV and the Internet.

Timing its debut to the highly polarized 2008 elections, SaysMe allows you to promote the people and causes you care about most in a brand new way. Now, instead of passively writing checks and wondering how the money will be spent, you can choose 30 second ads from our library and run them on TV with your name branded on the end as the sponsor.

For you creative types, we encourage you to make your own ads and let people who share your views sponsor them. You’ll even get paid every time someone runs your ad on TV.

SaysMe’s mission is to democratize television and empower citizens to seize control of the airwaves - just like politicians and corporations. SaysMe is a vehicle for your passions, beliefs, grievances, causes, events, and ideas. Use it to make your voice count.

Make your own ad. With todays technology it is not that difficult. pay the fee <$100 for a given market. The Swift Boat Gang did pretty well on their own. But imagine what these guys could have done with a tool like this at their disposal.

So how does this kill McCain-Feingold? Its a stretch but I’ll try. The Act attempts to control content by controlling the money that funds it. Since it is the 527’s that control a bunch of that money they also control the content and the message. So patrolling the Act is but to monitor a handful of 527’s. But how does the DOJ patrol thousands of ads in hundreds of markets across the country? They can’t which is the point.

Second, even if the DOJ attempts to enforce the Act against an individual I suspect all hell is going to break loose. Should such a case come before the judiciary it will probably march right up to the Supreme Court. SCOTUS would then be in a pickle. To uphold the Act would be to abridge “…abridging the freedom of speech,…” provisions of the 1st Amendment as well as the petition of grievances thereto for an individual. To uphold the 1st Amendment would invalidate the Act. SCOTUS best course? Invalidate the Act. It should have been the first time it was on their docket.

Very exciting times.

Something’s wrong when the FCC can run a near sham auction and award most of the wireless spectrum to two incumbent monopolies only to have their BPL regulations overturned by a handful of hobbyists. Then again in the auction, billions were collected, and the judge that’s holding BPL up is probably an ARRL member. Reality is there is nothing fair, impartial, or openly competitive about the way things are being run by our government.

When setting rules for BPL operators nearly two years ago, the Federal Communications Commission said it was trying to encourage deployment of a “third pipe” to compete with cable and DSL services, while establishing limits aimed at protecting public safety, maritime, radio-astronomy, aeronautical navigation, and amateur radio operators from harmful interference. The American Radio Relay League (ARRL), which represents amateur and ham radio operators, however, promptly sued the agency, contending that the FCC’s approach was insufficient to ward off interference with its radios and inconsistent with its previous rules.

On Friday, the U.S. Appeals Court for the District of Columbia on Friday issued a ruling (PDF) that took issue with the way the FCC arrived at its rules. (Cnet)

We here at ThirdPipe are big Google boosters. They provide services we doubt would even exist without them being around. One of their most popular features is Google Maps. They have Street View as a component of that service.

There is a problem though. Street View could be a source of infringement. Google has already been sued and removed photos off the site. For an example beyond the pale go here, the blog The Smoking Gun To get that series of photos Google would had to have crossed onto private property to get them. Very bad form in my opinion on multiple levels.

Google really needs to police Street View a lot better than they are doing right now.

Linky.

Mr. Malone of the WSJ lays out aspects of societal and business change that the US faces in say the next 50 years. He throws terms out like ‘fat pipe’, ‘process patents’, ‘free internet’, etc. Our loyal Thridpipe readers already know all this because we have this electronic pulpit on high. We have been laying this prescription down since this blog was created. —

- Build up Brand America. Government agencies, including the USAID and United States Commercial Service, need to promote American brands, via the Web, hardware and software, to everywhere in the world where they are currently unknown or disliked. Voice of America needs to become a massive Internet portal to the American economy and media.

The U.S. International Trade Commission must actively pursue illegal international threats to our e-economy from hackers to scammers — such as bringing serious economic sanctions against nations that look the other way (or even support) these activities. We need to capture the dominant share of the minds of the next two billion, enforce an honest Web, and make America again synonymous with the best.

- Create a Fat Pipe. Many of the great fiber optic lines entering and leaving the U.S. were almost dark a decade ago, and that abundance created an opportunity that helped propel the creation of companies like Google. But Google’s recent announcement that it was going to install its own cable across the Pacific to Japan suggests that the age of cheap bandwidth is almost over. Late last year, a report by Nemertes Research predicted a bandwidth shortage by 2011.

The U.S. needs to have the fastest, cheapest and most reliable Internet access on the planet, both inside our borders and in our connections to the rest of the world. Like the railroads and the interstate highway system before it, we need a program of direct investment, subsidies and tax breaks to assure that Americans always have the world’s best Web access – and the rest of the world has the best access to us.

- Revamp Nafta. While the Democratic candidates are calling for the abolition, or crippling of the North American Free Trade Agreement, what we should be discussing is how to revamp it and other trade accords to reflect the newly emerging world of people-to-people, not just business-to-business, trade. We need to be prepared for a world where knowledge workers around the world are hired online by the minute – in other words, radically simplified employee contracts, payroll tax documentation and W-2s, and improved tax laws on home offices, part-time work, and self-employment.

But most of all, we must not impede this inevitable transformation by doing anything to limit free trade – even if that means reaching individual trade accords with countries regarding buying and selling on eBay, MySpace, Facebook and the like.

- Promote a Free Internet. The lights of intellectual freedom that have been created by the Internet are slowly going out all over the world – look at China’s recent blackout of Web videos of events in Tibet. We need to fight to keep the Internet open and accessible to everyone on the planet, and keep tyrants from censoring their people.

Short of that, we need to keep the U.S. an island of Web freedom, open to anyone who can reach our servers and sites. A good start would be to require U.S.-based companies to maintain free speech in all their international subsidiaries – no more Yahoos helping foreign governments locate dissidents.

- Reform patent laws. In an era characterized by “free” downloads as well as the proliferation of pirate content sites, the overly broad U.S. patent and copyright laws need to be reformed to reflect these new sensibilities. Today they stifle innovation. A good place to start would be a revamping, if the not the elimination, of “business method” patents, which even Justice Anthony Kennedy has suggested can suffer from “potential vagueness and suspect validity.” Meanwhile, patent approvals need to be made faster, tougher and cheaper.

- Make education more open. It is time for the rest of us to accept the reality that education in the U.S. is now a multi-platform (public, private, home) experience, and begin building Web-based curricular support for all three. It is in our national interest to make all schoolchildren well-educated and competitive in the modern economy.

Now we are not Malone clones. There have been articles we have vehemently disagreed with. But for once he is firing all the cylinders. Most definitely get rid of the ‘business process’ patents. They are a scourge. But we ought to go further. First roll back patent use to 17 years as was originally fostered. If you can’t turn a profit in that period of time you don’t deserve to keep the patent anyway. Patents and copyrights should also have innovation and sunset provisions. If a patent holder does not utilize the patent or license it for deployment within the first 4 years then the patent is invalidated. As well if a copyright is not longer a published work available for first release purchase or the death of the author then it becomes public domain. I love Elvis Presley recordings, but something is wrong when the estate is still in force collecting royalties.

There is also one that Malone missed. ‘Promote the Everyman’. Foster an environment that anyone who wants to compete can do so. The function of government should be to build that stadium of equal opportunity. The place to start is in revamping small claims court to include all the provisions of superior court as to court directed remedies. Today most small claims are only available for remedy of monetary damages. The problem is in many cases the damage stems from systemic abuse by corporations. The little guy has to be able to have their day in court. Abolish one way contracts and forced arbitration as a manner to receiving products & services. Eliminate legal extortion by making it a penalty of disbarment for a lawyer to blindly issue legal threats without ascertaing that there has been actual damages to his client.

Mr. Malone is to be commended for this piece.

Read the whole article here.