That is what a 3 judge panel of the first District Court of Appeals just did in the case of Comast vs FCC. The Panel offered the ruling as memorandum, not binding, but telegraphing the Courts observations and if affirmed by the full bench sets the FCC on its ear. –

Federal appeals court gave notice Friday it likely would reject the Federal Communications Commission’s authority to sanction Comcast for throttling peer-to-peer applications.

The U.S. Court of Appeals for the District of Columbia Circuit suggested as much during oral arguments with the FCC and Comcast. The Philadelphia-based cable concern is appealing the agency’s 2008 decision ordering it to stop hampering the peer-to-peer service BitTorrent as a traffic-management practice.

The order was in response to complaints Comcast was sending fake signals to users of BitTorrent, a bandwidth-heavy protocol often used to pirate copyright content.

“You have yet to identify a specific statute,” Judge Raymond Randolph told an FCC lawyer regarding the legal authority to ding Comcast.

To be sure, Friday’s reaction to the appellate court hearing made it increasingly clear the Obama administration’s FCC has been preparing for a defeat concerning net neutrality (.pdf), one of the largest issues surrounding internet freedom.

The upshot of this memo? —

* Net Neutrality as it has been proposed since Chairman Martin’s tenure may not survive in its current form if it survives at all.

* That the FCC may not even have the authority to regulate in this area as no controlling regulatory clause has been found by the court.

* That the 30% rule fostered by the FCC on the cable industry is willful and capricious. The panel summarily vacated that baseline without standing in current rule making by the FCC itself.

* Has political implications beyond the scope of this blog.

In many ways we are right back to 2004 in regards to carriers regard to traffic management, FCC’s role in this issue and the very nature of Net Neutrality.

Linky.
Full Finding here.

BlueHippo had sought bankruptcy reorganization protection last month when its payment processor’s bank unexpectedly blocked its funds, leaving the company unable to pay creditors. BlueHippo petitioned a Delaware bankruptcy court judge to allow the funds to be released to the company, but its request was denied on Dec. 2, according to court records.

Without access to the funds held by Checkgateway LLC, BlueHippo “will not be able to satisfy administrative expenses that will continue to accrue if these cases are maintained in Chapter 11 [reorganization],” according to the filing. The company has a bankruptcy court hearing on its Chapter 7 motion on Dec. 23.

With that the Blue Hippo seems on its last legs. We have cautioned about being involved with this firm in the past. The world for most of us will be a better place without them.

Link

COSHOCTON — A free service enjoyed by hundreds has been shut down due to illegal activity conducted by one individual.

“It’s unfortunate that one person ruins it for those who use the service legitimately,” said Commissioner Gary Fisher.

About five years ago, the county made a free wireless Internet connection available in the block surrounding the Coshocton County Courthouse at 318 Main St.

It was disabled last week after someone used the wireless local area network address to illegally download a movie.

The county’s Internet Service Provider — OneCommunity — was notified by Sony Pictures Entertainment about the breach, and the county’s Information Technology Department was in turn notified by OneCommunity.

Yes you got it. The actions of one person has ruined it for a whole town. Which is the problem with the current state of law in the realm of Internet Law. The innocent suffer along with the guilty.

‘Nuf Said?

Linky.

This is a little off the beaten track for this blog. But it does bring up some interesting perspectives vis a vis the Internet —

Austin Police Chief Art Acevedo says he and some of his officers have been harassed, lied about and had their identities falsely used in online blogs and in reader comment sections on local media Internet sites.

They’ve had enough.

In a meeting this month with department brass, Acevedo and the group discussed how they think such posts erode public trust in the department and how they have been wrongly maligned.

They have since researched their legal options and decided that from now on, they might launch formal investigations into such posts, Acevedo said. He said investigators might seek search warrants or subpoenas from judges to learn the identities of the authors — he thinks some could be department employees — and possibly sue them for libel or file charges if investigators think a crime was committed.

“A lot of my people feel it is time to take these people on,” Acevedo said. “They understand the damage to the organization, and quite frankly, when people are willfully misleading and lying, they are pretty much cowards anyway because they are doing so under the cloak of anonymity.”

So lets take the obvious on shall we? Brick Brac’s online usually indicate a more invective problem inside the organization. In a sense HR 101. You have some employees that think they have been treated unfairly and have no formal means to complain, whether true or not. Maybe they have a supervisor whose a tough nut. Does not matter, the aggrieved party will seek alternate means of venting. Today that is often the Internet. So the postings on the Internet are the symptom not the disease. So the chief might want to get out from behind the desk and do some management by walking around. He might pick up on the vibes from the rank and file. It is the only way to bypass the middle management filter.

As to going after posters. Well go for it, but it is probably not going to be as productive as you expect. ISP’s don’t have to give you ID’s unless you can show they are part of a criminal action. You have to show cause which is tough on the ‘Net. Then even when you have that, once you get to court you would have to show malice and fore thought on the part of the poster. Harder yet to prove. Then even after you go through all that effort, if it is an employee, think of the morale downer that will be once the grapevine spreads it around.

My last question to the Chief is do you apply the same standards to the Press if they use anonymity? Its one of their stock in trade techniques. Would you consider it appropriate to take equal action against say the Statesman? If you would not, then what is your differentiator? The Press has no more privileges that a private citizen has.

You guys have a tough job just like any other PD. People telling lies makes the job harder for sure. But people have been doing that long before the Internet came along. You will only win however if in your search for the source(s), having found them, dig deeper for the cause. Especially if it turns out to be an employee.

In fairness, Chief if you want rebuttal, we will make it available.

The asshats at ASCAP are now making waves that ringtones are derivative works of commercial art and therefore due an payable. Why this is a scam after the jump –

Internet watchdog Electronic Frontier Foundation has hit out at a US music royalties collector, accusing it of making “outlandish copyright claims” about mobile phone ringtones.

The American Society of Composer, Authors and Publishers (ASCAP) filed a lawsuit against telecoms giant AT&T, in which it told a federal court that ringtones fell under the public perfomance Copyright Act.

ASCAP collects royalties and licences on behalf of 350,000 members in the US.

In effect, the organisation is gunning for additional payments from mobile firms, and if they don’t cough up the royalties ASCAP could claim copyright infringement against mobile users, according to the EFF.

The lobby group responded by filing an amicus brief* for the case earlier this week in the US District Court for the Southern District of New York.

The brief, which was also joined by the Center for Democracy and Technology and Public Knowledge, urged the federal court to reject what the EFF described as “bogus copyright claims… that could raise costs for consumers, jeopardise consumer rights, and curtail new technological innovation”.

Here’s the clue this is a con job. The threat that ASCAP is throwing around is that they will go after the carriers customers. BUT, they won’t if the likes of AT&T, Verizon and Sprint pay up for them. This is the typical lawyer trick. Don’t go after the violator, go after the peripheral player in the affair that possess deep pockets. Always go after the deep pockets is the lawyers choice. That is the tip off this is a legal scam.

Linky.

In what has to be the biggest Hail Mary on record, the defendants in the Pirate Bay case will NOT be retried. As you may recall, a mistrial was requested after discovery that the judge in the case had dealings/relationships with entitles that the defendants had supposedly defrauded. But it is not all good either –

A Swedish appellate court ruled Thursday there would be no retrial in the Pirate Bay case, despite accusations the trial judge was biased against the four founders of the world’s most notorious BitTorrent tracker.

“We have reached the conclusion that we do not agree with the conflict of interest claim,” Sweden Court of Appeal Judge Anders Eka told Swedish media. In the appellate court’s written opinion, the three-judge panel said that backing “the principles” of copyright law “cannot be considered bias.”

In denying the appeal the original finding stands and the defendants must cough up the dough and face the jailer. Course in the end, they probably win again. With the right greasing of the palms Pirate Bay could be running in Khakistan in weeks.

Linky.

Left to their own devices, lawyers tend to be pretty deliberate predators. That means most of us with limited net worth are not likely to do battle with one of them operating on his or her own nickel.  The RIAA has made plenty of enemies with its shoot first, ask questions later tactics in prosecuting file sharers and may have broken a few laws in the process. Since RIAA does have deep pockets, it should come as no surprise that enterprising lawyers are filing a class action suit on behalf of the victims of RIAA’s legal adventures. I have little doubt that the victim’s won’t be getting much of the spoils, but watching the RIAA take a good beating may be a justice enough for many of those it harmed.

Not content simply to defend Jammie Thomas-Rasset in her high-profile retrial next week in Minnesota, lawyer Kiwi Camara is joining forces with Harvard Law professor Charles Nesson to file a class-action lawsuit against the recording industry later this summer. The goal is nothing less than to force the industry to pay back the alleged “$100+ million” it has collected over the last few years. (Ars Technica)

You can bet the MPAA is in the crosshairs.  While defending file sharers is a little dubious, there’s a larger issue with the DMCA. It criminalizes any of us who convert digital media from one format to another for our own use. If there’s a really benevolent attorney out there looking to self promote, it’s high time that this unconstitutional law gets a challenge inthe courts. Most of Congress has been too completely corrupted by big media to undo it. The courts may very well be the next best hope we have to restore fair use rights in America.

To conclude: taking into account the troublingly [sic] weak evidence of (1) Bennefield’s reliability in connection with the allegation of unauthorized access to and hacking into the BC grading system, and (2) nexus, the search warrant affidavit fails to establish probable cause. Accordingly, because the search and seizure were not conducted pursuant to a lawful warrant, all ongoing forensic analysis of the items seized from Calixte must cease, see Commonwealth v. Kaupp 453 Mass. at 106-107, n.7 ([valid] search warrant required to search seized computer), and the items must be returned forthwith. See Commonwealth v. Sacco, 401 Mass. 204,207 and n.3 (1987). Cf. Matter of Lavigne, 418 Mass. at 836. With respect to the two seized laptop computers and any other property that the Commonwealth claims do not belong to Calixte, the Commonwealth is to undertake to identify the owner(s) of this property, and, with prior notice to Calixte, return the items to those owners.

With that the single State Supreme Court judge gave the police and Boston College the judical slap that they deserved. They are to stop all further review of his equipment and return said devices forthwith. Glad to see some judges still believe in the 4th Amendment.

The initial story we covered here.

More here.

Silicon Valley that is. ThirdPipe has been warning those who paint in silicon that —

There was a young lady of Niger
Who smiled as she rode on a tiger;
They returned from the ride
With the lady inside,
And the smile on the face of the tiger. — Author uncertified.

The tiger in this case happens to be Obama’s DoJ antitrust unit who now has a new head who is throwing away the rule book —

Silicon Valley companies are bracing for a tough new phase of antitrust scrutiny, responding to signs of heavier enforcement by the Obama administration and continued pressure from abroad.

A stricter stance against companies that dominate their sectors is likely to test government-relations strategies that technology giants adopted during the Bush administration.

Google Inc., one of the most prominent companies under the watch of antitrust regulators, says its lobbyists and executives since March have met with about 40 groups, including lawmakers, regulators and advertising agencies, to argue that its business practices don’t reduce competition. A Google spokesman said the effort is a response to Google’s “size and success” not to the new administration.

Suuuure, and you do BBQ without a dry rub first too, right?

The thing is we are not against antitrust provisions. Wish more had been brought against Microsoft who really deserves it. The piece that conerns us however is the constant shifting of the emphasis with every administration that comes to town. It’s down right unhealthy in a country that is supposed to be based on a rule of law. Antitrust should be applied with the save fervor and rules with EVERY administration. The flavor of the quadrennial diminishes us all. But it does enrich the politicians and legal profession.

We are better off spending the money on more R&D not more lawyers.

Link.

A lot has changed since angry consumers sought revenge on mass marketers by taping postage-paid return envelopes to bricks and putting them in mailboxes. A new generation uses online mobs to launch swarm-style attacks aimed at shutting down Web sites or at disrupting business in ways that an individual never could. Sites such as whocalled.us collect data about certain marketers to warn other consumers.

Ever received such a call? We have. Its a mere annoyance. And their repeated calling makes for problems for many hence the tactics above. But that is not all –

Michael Silveira decided to strike back. The 22-year-old laboratory technician, who doesn’t own a car, says he was getting unsolicited sales pitches as often as twice a day on his cellphone.

So last week, Mr. Silveira began calling back an auto-warranty company that has become the focus of an Internet crusade. He left it voice-mail messages that contained nothing but a recording of Rick Astley’s 1987 hit song “Never Gonna Give You Up.”

Using phone numbers for Auto One Warranty Specialists Inc. that users posted to a Web site called Reddit.com, Mr. Silveira joined dozens of activists who have peppered the warranty company with messages including elevator music, threats and offers of rude services.

“I thought, if you get a bunch of people together, you could blow up their voice-mail boxes,” says Mr. Silveira.

The recipient of their efforts is David Tabb, the 42-year-old president of Auto One, an Irvine, Calif., warranty company with 60 employees. He says Reddit users overloaded his phone lines with computerized calls, changed voice-mail greetings on his company’s system, and even threatened arson. People have been conspicuously honking outside his home, he says. To cope, he redirected some of the numbers that activists had been calling.

Now being obscene or making threats is a tad over the top. At least in our view. So don’t do it. You could land in hot water legally. And don’t assume you can’t be tracked down if you do. With the assistance of the phone company(s) it is highly likely you will be if it is accompanied by a criminal investigation.

But that is not the whole story of course. As it is right now, 1st Amendment stands tall in saying you can’t stop them from calling. But there is a far cry from that standard. If I am walking down the street and and some guy is on a soapbox bellowing out some missive I can politely ignore him and keep walking. Neither party was harmed in the fact that I chose to ignore him. The speaker still retained his right to bellow his missive.

However the phone is not a manifestation of the fellow in the soapbox. By design phones are not multithreaded like the environment of the fellow on the soapbox. They only allow a single conversation at a time. By rote they block all other callers. When a robocall comes through I am effectively blocked from receiving the conversations I wish to hear. It would be equivalent to, once having reached within 50′ of the fellow on the soapbox, required to stop and listen for 1 minute. No one would stand for that actually or legally. So why do we persist in this fiction via the phone?

So a little bit of advise for those who want to swarm the robocallers –

• No obscene comments or threats. The idea of the music was a nice touch. Might I suggest the winning tune toward the end of the movie Mars Attacks?
• Make sure evey phone you have is on the federal do not call list. If your state has a registry also add your phone numbers there too.
• Look at your phone bill and make sure the number is listed there. Keep a copy. Its evidence they called you. If you end up in court it will be requested anyhow so be prepared.
• Assess whether it is worth your time. Acquiring personal satisfaction can be a time consuming business.

Welcome to the world of the Wild West of Telephony.

Linky.