Law Tips: Internet Law Update – Net Neutrality and More

How do you keep up on the latest Internet Law issues that play into your daily law practice? I think everyone can agree that Bring Your Own Device policies, Lawyers’ Use of Cloud Services, Net Neutrality, and other related issues, impact a broad scope of the legal profession. Law Tips has experts to help you out. Jessica Ballard-Barnett and Tony Rose are generously providing insights in this universally relevant area. They initiate the discussion today with an update on Net Neutrality.  And there’s a bonus for you at the end.

“Net Neutrality”1 is a policy or principle of treating all data on the Internet equally, not discriminating or charging differentially by user, content, site, platform, application, type of attached equipment, or mode of communication.2

The FCC published its “Net Neutrality Order” on March 12, 2015, in response to a question in its May 2014 Notice of Proposed Rulemaking: “What is the right public policy to ensure that the Internet remains open?” On April 13, 2015, the FCC published the final rule on its new regulations.3 The question generated over 4 million submissions to the FCC, with overwhelming support for the adoption of rules against three practices that harm the Internet: blocking, throttling, and paid prioritization.

The rules, promulgated through Title II of the Communications Act of 1934, apply to “consumer facing services” called “broadband Internet access service” or BIAS. BIAS is defined as a “mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to enable the operation of the communications services, but excluding dial-up Internet access service” or its functional equivalent.

The major provisions are:

  • BIAS may not block “lawful content, applications, services, or non-harmful devices, subject to reasonable network management.”
  • BIAS may not impair or degrade “lawful Internet traffic on the basis of Internet content, application, or service, or use of a non-harmful device, subject to reasonable network management.”
  • BIAS may not engage in “paid prioritization” which is defined as “the management of a broadband provider’s network to directly or indirectly to favor some traffic, including through use of techniques such as traffic shaping, prioritization, resource reservation, or other forms of preferential traffic management either (a) in exchange for consideration (monetary or otherwise) from a third party; or (b) to benefit an affiliated entity.” However, paid prioritization is permitted if the BIAS shows the practice “would provide some significant public interest benefit and would not harm the open nature of the Internet.”
  • Major provisions are prefaced with an understanding of “reasonable network management” which is defined as having “primarily technical network management justification” that does not include any other business practices and “is primarily used for a tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service.”

Much of Title II will not be applied to the final rules; regulation of the Internet will include “no unbundling of last-mile facilities, no tariffing, no rate regulation, and no cost accounting rules, which results in a carefully tailored application of only those Title II provisions found to directly further the public internet in an open Internet and more, better, and open broadband.”

It is unclear if Internet Service Providers (ISPs) will sue to block the rules or if legislators will change or block the rules. It does seem clear that, like other laws attempting to regulate Internet activity, the technology will outrun the law in little time.

  1. FCC Shifts Net Neutrality into High Gear
  2. Wikipedia, Net neutrality
  3. Federal Communications Commission (13 April 2015). “Protecting and Promoting the Open Internet – A Rule by the Federal Communications Commission on 04/13/2015” Federal Register.

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Many thanks to Jessica Ballard-Barnett and Tony Rose for sharing their expertise. Visit the blog next week when these two bring you help with cloud computing and BYOD. For their comprehensive CLE presentation during the 37th Annual Indiana Law Update choose one of our video replays scheduled in your locale in the coming weeks.

But Wait! I have the bonus I mentioned earlier. Jessica and Tony are providing the following online references where you can improve your knowledge of current Internet issues effecting both you and your clients:

Copyright and Trademark:

The Left Shark, Katy Perry and Copyright Chum; No, Katy Perry, you can’t trademark ‘Left Shark.

Satirical artist and 3D sculptor Fernando Sosa’s website, in reference to Katy Perry case above.

Katy Perry’s “Left Shark” Design Rejected By Trademark Examiner.

A rare damage award was handed down this year, in Automattic Inc. v. Steiner, C13-5413 PJH (Northern District of California, March 2, 2015)

First-Ever Award of ‘Any Damages’ for Fraudulent DMCA Takedowns Under Section 512(f)

BWP Media USA, Inc. v. Hollywood Fan Sites LLC, 14-CV-121 (JPO) (SDNY June 30, 2015)

A Plea To Interactive Website: Check Your Copyright Agent Designations….

A Picture is Worth a Thousand Words – and Maybe $150,000!: Helpful Hints and Guidelines on the Use of Internet Images

“Suggestive” trademarks can be registered with the Trademark Office, while a mark that is “merely descriptive” cannot. See generally The Five Categories of Trademarks: Legal and Marketing Considerations.

Federal Circuit Confirms that Advertising your Services on a Website is not Use in Commerce; Federal Circuit Rules Launching a Website or Other Advertising Alone is Not Service Mark ‘Use.

Trademark Examiner Not Swayed by Katy Perry’s Attempt to Trademark The Left Shark; Can’t Make This Up: Katy Perry’s Lawyers Use Left Shark Photo Taken By Guy They’re Threatening In Trademark Application.

 

Rights of Publicity:

Time for Your Close-up: The Right of Publicity in the Social Media Era

LinkedIn Faces Class Action over Contact Uploader Emails

 

Defamation:

Websites most likely have immunity under the Communications Decency Act (47 USC 230).

  • 230(c)(1) reads, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Court Rejects Bizarre Attempt To Scrub Consumer Review–Goren v. Ripoff Report.

Employee Defamation Claims: Why The Truth May Not Set Your Free

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If you would like to learn more about this or any of the other topics covered at this year’s 37th Annual Indiana Law Update we have Video Replay Seminars scheduled across the state.

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About our Law Tips faculty participants:
Jessica L. Ballard-Barnett, Judicial Law Clerk, Hon Melissa S. May, Judge, Indiana Court of Appeals, Indianapolis, IN. Ms. Ballard-Barnett earned her JD in 2010 from McKinney School of Law – Indianapolis. In addition to her position with the Court of Appeals, she is an adjunct instructor at Harrison College, Columbus Campus and Online. She is also a deputy on the operations team for GenCon and a columnist for HistoricIndianapolis.com.

Anthony J. Rose, Meitus Gelbert Rose LLP, Indianapolis, IN. Tony Rose has over twenty five years experience practicing law in both the private and public sectors. He joined Geitus Gelbert Rose in 2005, where he advises clients on copyright, trademark, technology, entertainment, and Internet issues. He has taught Internet Law at IU School of Law since 2006. Tony served as Vice President and General Counsel to an Indianapolis-based technology services firm, helping to grow the company from 60 to over 400 employees and to nearly $100 million in annual revenue.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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