The Perils of YouTube Filtering: Part 2

by: Tony Bates, Associate Editor, MTTLR

Editor: Part 1 introduced the emergence of filtering as a potential solution to copyright and infringement, and examined why it fails copyright owners. This part considers the problems of filtering from the perpsective of users and Google.

2) Users

YVI is also a terrible blow to utilize who use YouTube to upload their creative efforts as well as to the Internet community at large. Although YouTube has pledged that YVI will not “impede the free and fast communication YouTube has enabled,”²³ it has yet to explain how it will allow for fair use of video material.²⁴ Here’s how the system works: When a user uploads a video, that video is run through YVI to see if there’s a match with the content in its database. If so, the video is subject to the action the rights holder has decided to apply to it—it could be blocked, “tracked” or “monetized.”²⁵ If it is blocked, the user can contest the decision and YouTube can put the video up. It is at that point that the DMCA takedown provisions kick in. If the copyright holder wants the video taken down, it can send a takedown letter to the user (as it would under the old system).²⁶

This is problematic in two ways. Despite YouTube’s claims regarding "free and fast communication," it will almost surely sweep in an unacceptable level of false positives.²⁷ As a result, it will have the effect of stifling expression. YouTube is a haven for users who use copyrighted content to create new forms of expression,²⁸ and the technology would have to be sophisticated indeed to not block these otherwise protected forms of expression. Of course, YouTube is not required to post a video just because it doesn’t infringe a copyright. Indeed, even if YVI sweeps in what would otherwise be protected video, YouTube may delete videos it even suspects of infringement. However, to do so would be to ruin what has made YouTube great for the online community: the democratization²⁹ of creative expression by creating a repository for content that anyone can use. If faced with a notice from YouTube that their uploaded video may be infringing,³⁰it is likely that many users may not be willing to “put themselves in the crosshairs of movie studio lawyers”³¹ and may instead decide to keep their expression to themselves.³²

Electronic Frontier Foundation’s Fred von Lohmann has proposed two modifications to the system that would help protect fair users. The first is to require a video and an audio match before automatically blocking content.³³ The second is to determine what ratio of the uploaded video is comprised of protected content—if the ratio is low, it is likely the post counts as transformative content.³⁴ This is a step forward, but still leaves a lot of protected expression up in the air.³⁵ Another possible solution—to add a human component to the review process—simply won’t do. YouTube is likely unwilling to open itself up to the liability that would occur if one of its reviewers green-lights a video that turns out to be infringing. It would also be too costly and time-consuming to personally review every movie that gets posted on YouTube. The best solution, it seems, is to continue to place the burden on copyright owners to find what they believe is copyright infringement and to allow them to follow the DMCA’s procedures. YVI places an extra burden on fair use that neither the courts nor Congress has required.

3) Google

YVI is also an unnecessary and unfortunate step for Google because it does more than the law requires.³⁶ A compelling argument can be made³⁷ that YouTube falls well within the DMCA safe-harbor provisions.³⁸ That is, even without YVI, YouTube could very well escape liability because of its substantial compliance with the DMCA. Viacom’s complaint is, at its heart, that YouTube is following the law too closely for its liking.³⁹ Google’s decision to implement YVI is too large a concession to make to the copyright owners—Google is now the one responsible for finding infringing videos (and for creating and maintaining the software responsible), even though the DMCA places that burden on the copyright owners. Paradoxically, YVI could actually be used against Google: implementation of YVI shows that Google is well aware of the copyright infringement that exists on its website. By providing the filtration service, Google may be shouldering more responsibility than it’s prepared to take on. If YVI fails to flag a protected video, Google will have a harder time taking refuge in the DMCA’s safe-harbor provisions because the knowledge requirement⁴⁰ clearly will have been met.

It is likely that, feeling the pressure from Viacom’s lawsuit, Google wanted to show that it was serious about copyright infringement on its website. YVI was a poor way to do this for three reasons. First, although the Supreme Court has implicitly favored attempts at filtration,⁴¹ it has by no means required it.⁴² Without other evidence of intent that the product be used to infringe, Grokster implies that filtration is unnecessary (although concededly helpful). Second, by implementing the software, Google may “have the practical effect of changing filtering from ‘one’ factor to ‘the’ factor that a court considers” in deciding this sort of infringement action.⁴³ Because of Google/YouTube’s size and market presence, its decision to create YVI could likely become the industry standard. If that occurs, it will make it more difficult for smaller websites to host content because of the costs involved in developing or licensing filtration software. Third, YVI was a poor response to the Viacom lawsuit because it simply will not help Google fight claims of past infringement.⁴⁴ Instead, this move looks like a signal of YouTube’s imminent decline. As copyright owners begin to develop their own content-distribution systems,⁴⁵ it seems inevitable that users will begin to migrate to the websites hosting the popular content.⁴⁶ YouTube became the market leader due, in part, to its hosting of copyrighted content.⁴⁷ Without that content, YouTube must tread very carefully to avoid losing the users that have made it worth $1.65 billion. Implementation of YVI is a step in the opposite direction.

4) Conclusion

YVI is a bad solution for all parties concerned. I do not mean, however, to overstate the case against YVI. Undoubtedly, it will have a marked effect on cutting down on clearly infringing videos posted on YouTube, thus decreasing the number of separate acts of infringement against copyright owners. Instead, my argument is simply that YVI will not be completely effective against copyright infringement and that it is no greater a solution than the licensing system already in place.

It is also not the case that YVI will inevitably lead to the total downfall of YouTube: YouTube is popular, in part, because it is a common home for a wide range of wholly original works. YVI will surely not have an effect on that aspect of use. However, many YouTube videos incorporate copyrighted content into original works of creative expression. If one accepts the proposition that a great number of those works should properly be considered fair use,⁴⁸ then YVI will end up imposing a large burden on this legitimate form of expression. Restrictions on the ability of users to use copyrighted content in the works they upload to YouTube will harm YouTube’s business model and the Internet community at large. Indeed, I believe that any undue difficulty in getting a legitimate fair use video past the system will have the ultimate effect of user migration.

This is not to say that it’s a bad thing to keep infringing works off the web: obviously, if a work is infringing it should be flagged and removed. I only mean to argue that YVI flags too much while, at the same time, failing to safeguard the interests of the copyright owners it was implemented to protect.

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²³  Nate Anderson, Filter This: New YouTube Filter Greeted by Concerns Over Fair Use, Ars Technica, Oct. 16, 2007.
²⁴  Quinn, supra note 18.
²⁵  Posting of Gigi Sohn to Public Knowledge Policy Blog (Oct. 15, 2007, 15:14 EST).
²⁶  Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(3)(a) (2006).
²⁷  See Doctorow, supra note 17.
²⁸  See Posting of Fred von Lohmann to EFF Deeplinks Blog, (Oct. 15, 2007).
²⁹  For examples of this democratization phenomenon, see, e.g., YouTube.com, First Try (last visited Nov. 19, 2007) (80 year-old Peter seeks to “bitch and grumble about life in general from the perspective of an old person who’s been there and done that”); YouTube.com, Hamlet on the Street (last visited Nov. 19, 2007) (18 year-old actor Craig Bazan from Camden, NJ performs soliloquy from Hamlet).
³⁰  For examples of videos that might get swept up by an overbroad filtration system, see, e.g., YouTube.com, Brokeback to the Future (last visited Nov. 19, 2007) (mashing together video and audio taken from Back to the Future and audio taken from Brokeback Mountain); YouTube.com, The Shining Recut (last visited Nov. 19, 2007) (re-editing video from The Shining with original audio).
³¹  Von Lohmann, supra note 28.
³²  EFF has compiled a sample list of videos that would probably count as fair use but might get blocked by YVI. EFF, supra note 15.
³³  See Von Lohmann, supra note 28.
³⁴  Id.
³⁵  See, e.g., YouTube.com, Vader Sessions (last visited Nov. 19, 2007). 100% of the video is taken from Star Wars and 100% of the audio is taken from films in which James Earl Jones appears. Both video and audio are presumably copyrighted, but the YouTube video would have a compelling fair use defense due to the parodic and transformative nature of the work.
³⁶  See Quinn, supra note 18; YouTube Video Identification Beta, supra note 11.
³⁷  See Posting of Oscar Lara to The MTTLR Blog (Nov. 15, 2007, 2:49 EST).
³⁸  Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(1) (2006).
³⁹  See Complaint at 3, Viacom International, Inc. v. YouTube, Inc., No. 07CV2103 (S.D.N.Y. March 13, 2007) (“[Y]ouTube…has decided to shift the burden entirely onto copyright owners to monitor the YouTube site on a daily or hourly basis to detect infringing videos and send notices to YouTube demanding that it “take down” the infringing works.”).
⁴⁰  Digital Millennium Copyright Act 17 U.S.C. § 512(c)(1)(A) (2006).
⁴¹  See MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 926 (2005).
⁴²  See id. at 939 n.12.
⁴³  Sohn, supra note 25.
⁴⁴  See Andy Greenberg, YouTube’s Filter Fails to Please, Forbes, Oct. 18, 2007.
⁴⁵  Viacom, for example, just posted every “Daily Show” clip in the Jon Stewart era on its own website: The Daily Show with Jon Stewart (last visited Nov. 19, 2007).
⁴⁶  Viacom is also planning a similar website for “The Colbert Report.” Brian Stelter, ‘Daily Show’ Archives Appear Online, N.Y. Times, Oct. 18, 2007. This is to say nothing of underground content distribution networks like BitTorrent.
⁴⁷  For example, note the surge in YouTube searches on Google after it began hosting Saturday Night Live’s Lazy Sunday on December 17, 2005. Search of “YouTube” on Google Trends (last visited on Nov. 17, 2007).
⁴⁸  For a forceful argument of this proposition, see Kurt Hunt, Note, Copyright and YouTube: Pirate’s Playground or Fair Use Forum?, 14 Mich. Telecomm. & Tech. L. Rev. (forthcoming 2007).

The Perils of YouTube Filtering: Part 1

by: Tony Bates, Associate Editor, MTTLR

The growing emergence of “Web 2.0”¹ has caused an explosion in the amount of user-generated content that appears on the Internet.² YouTube.com has revolutionized the way we watch some of this content online, by allowing users to upload video files stored on their computer and by combining social networking features with that video. Amazingly, over six hours of video are uploaded onto YouTube every minute.³ The success YouTube has enjoyed over the past few years has not been unnoticed—its user base is so lucrative that last year Google purchased YouTube for the princely sum of $1.65 billion.⁴ Given the activities of those users, however, YouTube has found itself the target of numerous lawsuits⁵ by copyright owners (the deep pockets of its new investor provide an additional incentive). Perhaps most notable is the lawsuit brought by Viacom: tired of filing DMCA takedowns for the over 150,000 unauthorized clips it claims are hosted by YouTube,⁶ Viacom is asking for $1 billion in damages for copyright infringement,⁷ despite YouTube’s removal of over 100,000 Viacom-owned videos in February.⁸

Viacom’s consternation is based, in part, on YouTube’s withholding, until now, of filtering technology that would ease Viacom’s burden of issuing DMCA takedown notices for infringing YouTube videos.⁹ YouTube has dragged its feet in implementing this technology claiming technical problems¹⁰ (it’s worth noting that YouTube has had no problem in developing a process that keeps pornographic videos from being uploaded) but did roll out a beta version of its new “YouTube Video Identification” (hereinafter, YVI) software just last month.¹¹ YVI is the newest of several policies and tools YouTube has in place to limit the level of copyright infringement that takes place on its website.¹² This new software, designed to facilitate the “free and fast communication YouTube has enabled”¹³ has been criticized by copyright owners as “too little, too late”¹⁴ and by copyright watchdogs as substantially overbroad.¹⁵ I would argue that not only is YVI a poor solution for both groups, it is also an unwise strategic move by Google.

1) Copyright Owners

Copyright owners like Viacom should be careful what they wish for—YVI shows they just might get it. Unfortunately for them, YVI is hardly the solution that copyright owners were hoping for. Although it may seem like a “logical way to try to balance the needs of users and copyright holders,”¹⁶ it actually imposes excessive burdens on copyright owners that will likely render the software ineffective. Cory Doctorow argues that it would be impossible to write a program that is able to spot all copyrighted works, as well as every “transformation, re-encoding, downsampling, and re-edit of those works.”¹⁷ If it is unable to do so, a large number of copyrighted works will fall through the cracks. This is practically guaranteed, when one considers the sheer amount of time and money it would take for a corporation like Viacom to turn in a copy of every copyrighted work it owns to Google.

Technological limitations aside, the program simply asks too much of copyright owners. YouTube wants the “content community” to “help [YouTube] help [the copyright owners]”¹⁸ by handing over to Google all of the copyrighted material they wish to protect. Google will then use the content repository to find works on its website that match up with the protected works in its database. By placing the onus to produce on the copyright owners, Google can claim that it's not their fault if their filtering software failed to catch the infringing content if the protected work isn’t in Google’s massive database. At the same time, copyright owners are extremely reluctant to hand over such a large amount of material to “the ultimate big brother.”¹⁹ Indeed, the system essentially establishes a two-tiered copyright system with respect to YouTube: those that have the means and the willpower to, in effect, register their copyrights with Google²⁰ will receive protection, while those that fail to register will receive nothing. This does nothing to alleviate copyright owners’ concern that the current system, whereby YouTube offers filtration protection only to companies that sign licensing agreements, is also a two-tiered copyright system divided between those that play ball with YouTube and those that don’t.

One solution to this problem, proposed by Viacom, is to set up an industry-wide content repository instead of allowing content providers like YouTube to continue to develop proprietary systems of their own.²¹ One way to do this might be to add to the 1976 Copyright Act’s registration requirement: require also that a copyright holder place on file with the Copyright Office a digital copy of the protected content in order to commence an infringement action. The Copyright Office could then allow third parties like YouTube to use their filtration systems to match up posted content on the website with registered content at the Copyright Office. This would eliminate the “whack a mole” problem that currently plagues corporations like Viacom—as more websites roll out their own unique proprietary content filtration systems, copyright owners like Viacom are forced to keep up with each system’s requirements by handing over their content to each one.²² Of course, copyright owners might be nearly as averse to creating a database of content owned and controlled by the government as they are to creating one that Google controls. Still, with proper congressional oversight, the program seems more likely to win support from the corporate community.

Editor: Part 2 will consider the problems of filtering from the perpsective of users and Google. It will publish later today.

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¹  Tim O’Reilly, What is Web 2.0: Design Patterns and Business Models for the Next Generation of Software, O’Reilly, Sept. 30, 2005.
²  User-generated content is not a very well-defined term, but I won’t attempt to find an alternative here. I refer here only to that content that is published by those users who would historically not have had the means to publish the content in question and who would not have had access to the extremely large audience the Internet provides. See Jemima Kiss, The Trouble with "User" Generated Content, organgrinder, Jan. 3, 2007.
³  Richard Wray, YouTube Puts ID on Clips, Guardian Unlimited, Oct. 16, 2007.
⁴  Catherine Holahan, YouTube’s New Deep Pockets, BusinessWeek, Oct. 10, 2007.
⁵  Posting of Kurt Hunt to The MTTLR Blog (Nov. 14, 2007, 2:05 EST).
⁶  See Complaint at 2-3, Viacom International, Inc. v. YouTube, Inc., No. 07CV2103 (S.D.N.Y. March 13, 2007).
⁷  Frank Ahrens, Viacom Sues YouTube Over Copyright, Wash. Post, Mar. 14, 2007, at D02.
⁸  Viacom Sues YouTube for 1 Billion Dollars, Google Operating System, Mar. 13, 2007.
⁹  Posting of Admin to DailyTechRag (Mar. 12, 2007, 20:21 EST).
¹⁰  Id.
¹¹  YouTube.com, YouTube Video Identification Beta (last visited Nov. 19, 2007).
¹²  Posting of David King to The Official Google Blog (Oct. 15, 2007, 14:01 EST).
¹³  YouTube Video Identification Beta, supra note 11.
¹⁴  Paul Sweeting, YouTube Filtering Draws Mixed Reviews, Content Agenda, Oct. 16, 2007.
¹⁵  See EFF, A “Test Suite” of Fair Use Examples for Service Providers and Content Owners (last visited Nov. 19, 2007).
¹⁶  David Kravets, Google Unveils YouTube Copyright Filter to Mixed Reviews, Wired Blog Network, Oct. 15, 2007.
¹⁷  Cory Doctorow, Why a Rights Robocop Will Never Work, Guardian Unlimited, Oct. 30, 2007.
¹⁸  Michelle Quinn, YouTube Unveils Copyright Protection Plan, L.A. Times, Oct. 16, 2007.
¹⁹  Sweeting, supra note 14.
²⁰  Registration with the Copyright Office has not been required for copyright protection since 1976, although it is required if the copyright holder wishes to commence an infringement action. Copyright Act of 1976, 17 U.S.C. § 411 (2005).
²¹  Heather Havenstein, Viacom CEO Dismisses Google Antipiracy Plan, PCWorld, Oct. 20, 2007.
²²  Erika Morphy, Google Shields Own Backside With Antipiracy Filter, E-Commerce Times, Oct. 16, 2007.

The Proper Role of Ambiguity in the Chevron Analysis

by: Mat Gordon, Associate Editor, MTTLR

Introduction

Can federal agencies redefine the law in the face of technological innovation? Terrell v. United States,¹ a recent case decided in the district court of our very own Eastern District of Michigan, raises this issue. In this post, I will address the following specific question: does the court’s interpretation of “ambiguous” for application of the Chevron doctrine give Federal agencies too much power to interpret law in the face of technological innovation?

Terrell is serving a life sentence for murder in a federal penitentiary. His parole hearing was rescheduled several times before Terrell was finally informed that the hearing would be held by videoconference. Shortly thereafter, Terrell filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.² The petition asserted that holding a parole hearing by videoconference was unlawful because 18 U.S.C. § 4208(e) requires that “[t]he prisoner shall be allowed to appear and testify on his own behalf at the parole determination proceeding.”³ Terrell argued that the word “appear” in the statute means being physically present at the parole hearing. The government argued that the Parole Commissioner’s interpretation – that “appear” can include appearing on a T.V. monitor – was correct.

Ambiguity in the Chevron Analysis

The District Court first held that the Parole Commissioner’s interpretation of the word “appear” is subject to the Supreme Court’s Chevron framework.⁴ The Chevron framework is applied when a court is asked to review an agency’s interpretation of the statutes that it applies. It is a two part analysis:

First, the court must determine if the meaning of the statute is clear. If the statute is clear, the agency’s interpretation is invalid unless it agrees with the statute.

Second, if the statute is ambiguous, then the court will defer to a reasonable agency interpretation.

As you might have guessed, whether a statute embodies a clear Congressional statement and whether an agency interpretation is reasonable can be subject to some play in meaning. The latitude an agency enjoys to interpret the statutes it applies will be related to how deeply the court is willing to dig to find a clear congressional statement, or an unreasonable interpretation.

In Terrell, the court rejected the magistrate judge’s finding that the word “appear” is ambiguous because of definitional ambiguity, or conflicting meanings of the word in the dictionary. Instead, the court held that the word “‘appear,’ as that word is used in § 4208(e) is not ambiguous when reviewed in the context by which the word is used”: it means a physical appearance.⁵

The court should have stopped there. If the meaning of the word is clear to the court as Congress contemplated it, then the Chevron analysis should be finished. Instead, the court decided that the word “appear” is ambiguous: meaning that the Commissioner’s interpretation must stand unless it is unreasonable. The court found that “when enacting § 4208(e), Congress could not have contemplated the use of video conferencing as it is currently utilized in our modern day judicial system. As such, this fact may create ambiguity in the word ‘appear.’”⁶

I believe that applying the logic underlying this statement generally would lead to unfortunate results. The court seems to be saying that an agency will gain the benefit of a presumption of deference when interpreting the law regarding issues Congress did not even address in the statute. I understand that Congress often delegates authority to agencies to make determinations, and that this authority often extends to reacting to new situations. This is not a problem in principle if the delegation of interpretive authority regarding new situations is clear. On the other hand, I do not believe that Chevron-style deference should apply in cases where Congress has not even contemplated whether a new technology should fit within a regulatory scheme.

Problems with Broad Adoption of the Court’s reasoning in Terrell

Consider an example. Assume that Congress creates an agency to ensure that all poor people living in the United States get health insurance. The agency’s organic statute states that “health insurance benefits shall be based on an applicant’s total assets, including any currency.” It is clear from the statute that currency means real money. After passage of the law, new technology allows creation of bank accounts in fictional online worlds where virtual items can be bought and sold. The secretary of the health insurance agency adopts a rule that virtual money held in these fictional worlds falls within the definition of “currency.”

Perhaps the secretary has a good reason to do this. Maybe some people are finding creative ways to turn the fictional money into real money. Still, it seems wrong to me that the secretary’s interpretation should not have a presumption of deference when Congress did not even imagine the possibility of this fictional money. Congress should be the one to decide whether a few people who are able to turn a real profit on fake money will lead to so much improper health insurance coverage that it should be included in the measure of total assets. Also, since the agency must fit its interpretation into the existing statute, a more nuanced solution could likely be reached by Congress because Congress can amend the statute.

One reply to this is that the second step of the Chevron analysis will save the day. Indeed, in Terrell, the court held that the Commissioner’s interpretation was unreasonable because it deprived the prisoner of his due process right. It is also possible that in the example above a court would invalidate the health insurance agency secretary’s interpretation because it is unreasonable. I believe that this would likely be the case in the most obvious examples of agency overreaching; however, I still worry that a significant number of agency interpretations that are completely outside the Congressional grant of authority would stand if the court’s reasoning in Terrell were adopted generally. Consider: if the second step of the Chevron analysis truly includes a presumption of deference unless the interpretation is unreasonable, then we can’t just say that the court should substitute its judgment for the agency’s.

Conclusion

In sum, I think the court went too far in extending the meaning of "ambiguity" in the Chevron framework to include technological innovations that Congress did not even contemplate. I am aware that agencies might be well-suited to make an informed decision regarding these issues. Still, on principle,⁷ I think that broad grants of interpretive deference to agencies should be based on more than a Congressional omission.

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¹  Terrell v. United States, 2007 U.S. Dist. LEXIS 72993 (E.D. Mich. 2007).
²  28 U.S.C. § 2241 (2006).
³  18 U.S.C. § 4208(e) (2006).
⁴  See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984); note that the Court spends a lot of time rejecting the analysis of the magistrate judge. Since the magistrate judge’s findings were not adopted, I will only address them when necessary to make a point.
⁵  Terrell, 2007 U.S. Dist. LEXIS 72993, *3.
⁶  Id.
⁷  Maybe some fanciful notion of the nondelegation doctrine.

The Impact of Comcast's BitTorrent Policy on Network Neutrality

by: Brian Pascal (bhpascal [at] umich [dot] edu), Associate Editor, MTTLR

Imagine buying a train ticket from Ann Arbor to Chicago. Imagine, also, that, upon arriving at the train station, an attendant notices that you are carrying a wheeled suitcase, well within normal size limits. Without examining the contents of the bag, the station attendant politely informs you that your trip to Chicago has a new stopover -- in Texas. He apologizes for the inconvenience, but, in order to ensure a smoother trip for other customers (whom, he claims, dislike walking behind people dragging wheeled suitcases), your trip will be substantially delayed. Worse, this action is not pursuant to any rules or regulations published by the railroad -- it simply happens, and you, without any choice, find yourself on a train heading towards Dallas.

This incongruous situation, absurd in the real world, is all too real on the Internet. A few weeks ago, the Associated Press discovered that Comcast is playing the role of station attendant, targeting a specific type of internet traffic and delaying its delivery.¹ The type of traffic targeted is that which is mediated by the BitTorrent protocol, a method originally designed for the efficient distribution of large files via the Internet while simultaneously distributing the costs of bandwidth and hosting among a multitude of users.² While there exist numerous legitimate uses for BitTorrent, and while it was not specifically created to assist in copyright infringement, the very capabilities that make BitTorrent a powerful tool for creating a robust, self-sustaining network for the distribution of legitimate large files also make it widely used to enable copyright infringement, allowing for the rapid distribution of movies, television shows, and music. For these reasons, legal and illegal BitTorrent traffic accounts for a large percentage of the overall traffic on the Internet (though specific usage data has proven difficult to measure). ³

When the Associated Press published their findings, Comcast's initial response was to flatly deny the allegations, stating that "Comcast does not block access to any applications, including BitTorrent."⁴ Several days later, however, Comcast admitted that it was, in fact, delaying BitTorrent traffic, stating that "[d]uring periods of heavy peer-to-peer congestion, which can degrade the experience for all customers, we use several network management technologies that, when necessary, enable us to delay -- not block -- some peer-to-peer traffic. However, the peer-to-peer transaction will eventually be completed as requested."⁵

This type of action, that of altering the flow of Internet traffic based on content, is merely the latest chapter in the ongoing debate over network neutrality. Tim Wu, a leading scholar in the field, states that "network neutrality is best defined as a network design principle. The idea is that a maximally useful public information network aspires to treat all content, sites, and platforms equally."⁶ Comcast's delaying of BitTorrent traffic is a clear deviation from that ideal, especially considering that it does not even specifically target the illicit uses of BitTorrent, but rather the protocol as a whole. Further, the means by which Comcast accomplishes this is by "impersonating" one of the users connected to the network, sending a signal that is interpreted as a request to stop transmission by TCP/IP, internet communication protocol.⁷

While there are strong normative and economic arguments to be made in favor of network neutrality,⁸ there is another theory, less often raised, that may serve to answer many of these questions under a legal framework -- the doctrine of common carriage. The idea of a "common carrier" dates back to the common law of the 1800's (or perhaps earlier). Generally, "common carriers were 1) required to serve upon reasonable demand, any and all who sought out their services; 2) held to a high standard of care for the property entrusted to them; and 3) limited to incidental damages for breach of duty."⁹ This was not limited strictly to railroad services and shipping conglomerates. "In 1901, following many state courts, the U.S. Supreme Court held that at common law -- i.e., even without a specific statute -- a telegraph company is a common carrier and owes a duty of non-discrimination."¹⁰ This commonlaw theory was instantiated in the United States Code, requiring communications carriers "to interconnect directly or indirectly with the facilities and equipment of other telecommunications carriers,"¹¹ and, moreover, to "ensure the ability of users and information providers to seamlessly and transparently transmit and receive information between and across telecommunications networks."¹²

Read broadly, it seems that ISPs should be included in the set of telecommunications carriers regulated by these laws, and, moreover, to stand as a Congressional mandate of network neutrality; however, they are, generally speaking, not applied to internet connectivity.¹³ Further, current ISPs rely upon a host of economic and non-economic arguments to promote "network diversity," arguing, for example, that the ideal of network neutrality is dependent upon a myth of "infinite bandwidth," and that the application of a truly content-agnostic network is inefficient in practice.¹⁴ Additionally, since the ISPs claim ownership over their own networks, they argue that it is fully within their rights to regulate and optimize their available bandwidth as they see fit.¹⁵ Comcast's recent throttling of BitTorrent connections is in keeping with this side of the argument. Given the economic concerns of of providing the best possible experience to its users, coupled with the very real fact that BitTorrent is responsible for a large percentage of its available bandwidth, Comcast made the decision to sacrifice the optimistic ideal of neutral network upon the altar of perceived practicality.

The debate over network neutrality is far from finished. Between the widespread, mainstream coverage of Comcast's shaping of their network, and Barack Obama's announcement of his intention to fight for network neutrality,¹⁶ the conversation has never been more prominent nor more relevant.

But conversations depend upon open channels of communication. Instead of fostering free and open communication, ISPs appear to hope for a return to the more centralized broadcast model, in which content providers are the main source and users are little more than passive receivers.¹⁷ In so doing, those in favor of network diversity short-circuit the very ideals originally embodied in the law of common carriage, the ideals that should, given the directness of the analogy, live on in modern Internet regulation. The alternative is a future in which speech not supported by big business is at risk for routing through Texas, and that situation, under any other circumstances, has never been allowed to stand.

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¹  Peter Svensson, Comcast Blocks Some Internet Traffic, Wash. Post, Oct. 19, 2007.
²  See, e.g., Wikipedia, BitTorrent (last visited Nov. 12, 2007).
³  Id.
⁴  Svensson, supra note 1.
⁵  Peter Svensson, Comcast Admits Delaying Some Traffic, USA Today, Oct. 23, 2007.
⁶  Tim Wu, Network Neutrality FAQ (last visited Nov. 12, 2007).
⁷  See, e.g., Susan Crawford, Comcast is Pretending to be You, Susan Crawford Blog (last visited Nov. 12, 2007).
⁸  See, e.g., Wu, supra note 6.
⁹  Eli M. Noam, Beyond Liberalization II: The Impending Doom of Common Carriage, 18 Telecomm. Pol'y 435. Sec. II (1994).
¹⁰  Cybertelecom, Common Carriers, (citing Noam, supra note 9).
¹¹  47 U.S.C. § 251(a)(1) (2000).
¹²  47 U.S.C. § 256(a)(2) (2000).
¹³  See Noam, supra note 9.
¹⁴  See generally, Christopher S. Yoo, Beyond Network Neutrality, 19 Harv. J. Law & Tech. 2 (2005).
¹⁵  Id.
¹⁶  Barack Obama - U.S. Senator for Illinois, Network Neutrality, June 8, 2006.
¹⁷  Susan Crawford, The Radio and the Internet (working draft).

The Supreme Court's Recent Patent Decisions from the Perspective of a New IP Associate

by: Ming Shui, MTTLR Alum

The state of patent law today has significantly changed in the two years since I graduated from law school. In fact, the changes are such that I would estimate that around half of what was taught in my patent classes is no longer good law.

Beginning in 2006 with eBay v. MercExchange,¹ the Supreme Court has heard and agreed to hear a significant number of patent cases relative to recent years. eBay signaled that the Court was beginning to push back against what some would argue as too many patent-friendly decisions coming from the Federal Circuit which were beginning to stifle rather than spur innovation.

eBay was found to be infringing a patent held by MercExchange. MercExchange sought to enjoin eBay from using its product. Under the Federal Circuit doctrine prevailing at the time, an injunction was virtually guaranteed once infringement was found. The Supreme Court in eBay, however, held that courts should consider the traditional four-factor test for issuance of an injunction, and should not issue injunctions automatically.

The result is that patent holders potentially lose one of the most powerful weapons they have against infringers -- the ability to exclude. Whether this is a good result is debatable, and there are many good arguments for each side that I will not repeat here. But the effect has been that although in most cases the injunction still issues, the District Courts have greater flexibility to decide whether to issue injunctions in specific cases.

In KSR v. Teleflex,² the Supreme Court weighed in on one of the most litigated areas in patent law: obviousness. The issue in obviousness is whether a person of ordinary skill in the art (POSITA) would have found the patented invention to be obvious. The Federal Circuit for many years used a test commonly referred to as teaching/suggestion/motivation (T/S/M) to determine if an invention that combines two or more items is obvious. The T/S/M test asks if there is some teaching, suggestion, or motivation in the prior art to combine those two items. If yes, then the invention is obvious.

The Supreme Court held in KSR that the Federal Circuit's rigid application of the T/S/M test, which Justice Scalia referred to as "gobbledygook",³ is inconsistent with the Court's holding in Graham v. John Deere.⁴ The Court essentially invalidated the T/S/M test and held that courts should follow Graham's "expansive and flexible framework" in determining if an invention is obvious. The "expansive and flexible framework" leaves a lot of room for lower courts to develop new tests and standards for determining obviousness. Where it will end up, nobody is exactly sure. However, one thing is clear: since KSR, a lot more patents have been found to be invalid for obviousness.

The court has also accepted for this term Quanta Computer v. LG Electronics,⁵ a case that questions whether a patent holder can seek royalty fees from more than one company in the supply chain that uses the patented product. This has the potential for profound impact on the possible damages in a patent case. The basic facts are LG licensed to Intel the right to produce and sell the patented chip. But license agreement Intel has with LG only authorizes Intel to combine the chips with other Intel products. Quanta uses the chip and combines it with non-Intel products. Can LG sue Quanta for infringement damages?

This was argued under the exhaustion doctrine at the Federal Circuit which is similar to the first sale doctrine in copyright law. The textbook example is if you buy a book, you are then free to resell the book to someone else without having to pay the copyright owner royalties for your sale of the book. The District Court found there to be an exhausting sale. The Federal Circuit reversed. Oral arguments are scheduled for January 16, 2008.

Finally the USPTO recently made final several changes to the way patents are prosecuted.⁶ Some notable changes include: an applicant may only make one request for continued examination after a final rejection, an applicant is limited to two continuing applications, and an applicant is limited to 5 independent and 25 claims total. These changes were to take effect on November 1, 2007. However, the United District Court for the Eastern District of Virginia issued an injunction on October 31, 2007 barring implementation of the rule changes.⁷

These cases and rule changes will have a profound effect on how patents are prosecuted, defended, and sold for the foreseeable future as practitioners adjust to the new framework the lower courts and USPTO will establish over the next few years.⁸

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¹  eBay Inc. v. MercExchange, L.L.C., 126 S. Ct. 1837 (2007).
²  KSR v. Teleflex, 127 S. Ct. 1727 (2007).
³  Transcript of Oral Argument at 41, KSR v. Teleflex, 127 S. Ct. 1727 (2007).
⁴  Graham v. John Deere Co., 383 U.S. 1 (1966).
⁵  Quanta Computer, Inc., et al. v. LG Electronics, Inc., 453 F.3d 1364 (Fed. Cir. 2006), cert. granted, 128 S. Ct. 28 (Sept. 25, 2007) (No. 06-937).
⁶  See Department of Commerce, Patent and Trademark Office, Changes to Practice for Continued Examination Filings, Patent Applications Containing Patentably Indistinct Claims, and Examination of Claims in Patent Applications: Final Rule (Aug. 21, 2007).
⁷  Tafas v. Dudas, No. 1:07cv846 (JCC), (E.D. Va. Oct. 31, 2007).
⁸  Microsoft v. AT&T, 550 U.S. ___, is another interesting patent case that the Supreme Court decided in 2007. While the issues and holding are important, they are less relevant to general day-to-day patent practice and so I'll simply mention that this is another case to explore if interested.