Canadian Net Neutrality Bill Introduced

Citizens using peer-to-peer applications in Canada experienced some of the same poor treatment by ISPs as their American counterparts have in recent weeks.  Some of Canada’s largest ISPs, including Bell Canada Inc. and Rogers Communications Inc., have limited their customers’ uses of the Internet. Bell and Rogers claim that a small percentage of customers have been congesting their networks by using peer-to-peer applications such as BitTorrent, so they have purposely slowed the Internet down at peak times of the day.

As a result, The New Democratic Party (NDP) has introduced a private member’s bill, C-552, which is a Net Neutrality bill.  The four-page bill seeks to amend the Telecommunications Act and “prohibit network operators from engaging in network management practices that favour, degrade or prioritize any content, application or service transmitted over a broadband network based on its source, ownership or destination, subject to certain exceptions.”

You can find the full text of the Act, and subscribe and receive XML updates on the Act, at LEGISinfo, the Canadian Parliament’s excellent website for legislative research.  It is a highly recommended research source.

Software Sale on eBay Satisfies First-Sale Doctrine

 

A federal court in Washington has issued declaratory relief that a plaintiff’s sale of authentic, used copies of AutoCAD software over eBay is not infringing, because the copyright author’s distribution rights in that particular copy have been exhausted under the first sale doctrine. Case name is Vernor v. Autodesk Inc., W.D. Wash., No. 07-1189, 5/20/08.

The court relied heavily on the Ninth Circuit’s 1977 opinion in United States v. Wise, 550 F.2d 1180 (9th Cir. 1977). Wise held that after “first sale,” a vendee “is not restricted by statute from further transfers of that copy.”  Wise had to do with motion picture film prints.  In relying on Wise, the court rejected other rulings issued the Ninth Circuit, [including a case we read in class MAI Systems Corp. v. Peak Computer Inc., 991 F.2d 511 (9th Cir. 1993)].  In rejecting the later opinions, the court said, “Where opinions of three-judge Ninth Circuit panels conflict, the court must rely on the earliest opinion.”

The facts in the present case – an AutoCAD ”sale” on eBay, with onerous restrictions on use – was not a license, for purposes the First-Sale doctrine, which the court found similar to the Wise case.

Supreme Court Rules on Internet Child Pornography Case

The Court recently held in United States v. Williams, that the challenged portions of the PROTECT Act were not unconstitutionally broad or vague.  As we discussed in class, the PROTECT ACT is a law intended to prevent child abuse, but has cyberlaw elements.  The Williams case challenged the part of the Act that criminalized anyone who knowingly

advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains (i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a visual depiction of an actual minor engaging in sexually explicit conduct. [18 USC §2252A(a)(3)(B)]

The Supreme Court ruling reversed a prior ruling by the US Court of Appeals for the Eleventh Circuit, which found that although the content described in subsections (i) and (ii) is not constitutionally protected, speech that advertises or promotes such content does have the protection of the First Amendment.  Read the Supreme Court’s Opinionat their official website.  LII’s Supreme Court Collection has the document divided by majorty opinion, concurrence, and dissent.  Also, see SCOTUSblog for great post-case analysis.

First Music Case May Get a New Trial

A Minnesota woman ordered to pay $222,000 in the nation’s first music download trial may get another chance with a jury. The issue is whether record companies have to prove anyone else actually downloaded their copyrighted songs, or whether it is enough to argue that a defendant made copyrighted music available for copying. U.S. District Court Judge Michael J. Davis instructed jurors that making sound recordings available without permission violates record company copyrights “regardless of whether actual distribution has been shown.” However, Davis said that may have been a mistake.

He wrote that he researched a 1993 ruling from the 8th Circuit Court of Appeals, which covers Minnesota, that said infringement requires “an actual dissemination of either copies or phonorecords.”  Oral arguments on the question of a new trial are planned for July 1 in Duluth, where the trial was held.