The Advocate General of the European court of Jsutice has released his opinion in Google France v LVMH, regarding Google's ability to sell keywords reflecting trademarks, in the EC. The Advocate General's opinion strongly determines the actual decision of the ECJ. The AG's view is that the sale of keywords is not per se unlawful From the ECJ press release:

In his Opinion delivered today, Advocate General Poiares Maduro suggests that Google has not committed a trade mark infringement by allowing advertisers to select, in AdWords, keywords corresponding to trade marks. He highlights that the use of the trade marks is limited to the selection of keywords which is internal to AdWords and concerns only Google and the advertisers. When selecting keywords, there is thus no product or service sold to the general public. Such a use cannot therefore be considered as being a use made in relation to goods or services identical or similar to those covered by the trade marks. Similarly, advertisers themselves do not commit a trade mark infringement by selecting in Adwords keywords corresponding to trade marks.

By contrast, the Advocate General finds that Google, by displaying ads in response to keywords corresponding to trade marks, establishes a link between those keywords and the sites advertised which sell products identical or similar to those covered by the trade marks. The very same link is established between keywords which correspond to trade marks, and the sites displayed as natural results.

However, in the view of the Advocate General, such a link also does not constitute a trade mark infringement. In effect, the mere display of relevant sites in response to keywords is not enough to establish a risk of confusion on the part of consumers as to the origin of goods or services. Internet users are aware that not only the site of the trade mark owner will appear as a result of a search in Google's search engine and sometimes they may not even be looking for that site. These users will only make an assessment as to the origin of the goods or services advertised on the basis of the content of the ad and by visiting the advertised sites; no assessment will be based solely on the fact that the ads are displayed following the entry of keywords corresponding to trade marks.

IPKat analysis here.

New FCC Chairman Julius Genachowski threw down the network neutrality gauntlet in a speech today [PDF] [HTML] at the Brookings Institution, announcing his intention to start a formal process that would result in adoption of binding regulations. [There is good news and blog coverage from AP, Wired, and Washington Post.] His proposal would turn the FCC’s existing advisory guidelines, known somewhat ridiculously as the “Four Freedoms” (begging unflattering comparison with a much more significant quartet) into rules governed by six principles. Quick statements of support from two other commissioners, longtime net neutrality supporter Michael Copps and new member Mignon Clyburn, demonstrated that Genachowski has the three out of five votes he needs to prevail.

The two additional principles are extremely important aspects of the plan. First, a “nondiscrimination” principle would embody the heart of the concerns expressed by activists for free speech and end-to-end openness who warned that providers would begin to offer preferential treatment to some content based on the identity of the sender, either to extract fees for high-speed delivery or to block competition. Second, a “transparency” principle addresses the concern I’ve always expressed: consumers and regulators can’t find out about ISPs’ traffic-shaping. As if the formal rule and the new principles weren’t enough, Genachowski also said he would apply the new regime to wireless as well as broadband carriers.

This will be a major fight, probably the most significant battle we have seen within the federal government over the structure of the internet.

A few other observations after the jump:

Language: Genachowski appears to avoid the language of “network neutrality.” He prefers to talk about a “free and open internet.” I don’t think it means much substantively, but it suggests he is thinking carefully about how to present these complex ideas to the wider public.

Characterizing Supporters: The story was leaked in advance to the New York Times, Washington Post, and Wall Street Journal, which all run stories over the weekend. I could not help but notice that the Journal cast the entire debate in terms of telecoms (like AT&T or Verizon) against content providers (like Google or Amazon), making no mention whatsoever of the grass roots citizen activism on the issue. The Times, meanwhile, did just the opposite, painting the dispute only as a corporate vs. consumer one without ever noting the interest of big content providers in getting federal regulation of internet access. Both portraits are grossly inaccurate, of course.

The Need for Action: Genachowski strongly refuted the argument often made by telecoms that there are not serious access problems (yet) so action on network neutrality is premature. He said:

Saying nothing — and doing nothing — would impose its own form of unacceptable cost. It would deprive innovators and investors of confidence that the free and open Internet we depend upon today will still be here tomorrow. It would deny the benefits of predictable rules of the road to all players in the Internet ecosystem. And it would be a dangerous retreat from the core principle of openness — the freedom to innovate without permission — that has been a hallmark of the Internet since its inception, and has made it so stunningly successful as a platform for innovation, opportunity, and prosperity.

Details, details: Boy oh boy is the devil in the details on this one! There are so many questions about implementation. For example, under the plan the FCC would evaluate cases under the nondiscrimination principle on a case-by-case basis, so we may not know precisely what’s allowed for a long time to come. Also, there would continue to be “reasonable” exceptions to allow for network management, but how much scope would wireless broadband providers have to constrain bandwidth-hogging applications, especially at peak times? And Eric Goldman just tweeted about the tension between network neutrality and Section 230 immunity. And those are just the first ones that come to mind. This is going to be a doozy…

Comcast has filed suit against the Federal Communications Commission (FCC) today in order to block the agency's decision to sanction Comcast for blocking certain Internet traffic.

Comcast has released the following statement attributed to David L. Cohen, Executive Vice President of Comcast Corporation:

"Although we are seeking review and reversal of the Commission's network management order in federal court, we intend to comply fully with the requirements established in that order, which essentially codify the voluntary commitments that we have already announced, and to continue to act in accord with the Commission's Internet Policy Statement. Thus, we intend to make the required filings and disclosures, and we will follow through on our longstanding commitment to transition to protocol-agnostic network congestion management practices by the end of this year. We also remain committed to bringing our customers a superior Internet experience.

We filed this appeal in order to protect our legal rights and to challenge the basis on which the Commission found that Comcast violated federal policy in the absence of pre-existing legally enforceable standards or rules. We continue to recognize that the Commission has jurisdiction over Internet service providers and may regulate them in appropriate circumstances and in accordance with appropriate procedures. However, we are compelled to appeal because we strongly believe that, in this particular case, the Commission's action was legally inappropriate and its findings were not justified by the record."

The formal petition can be seen here [PDF].

Update 9/4/2008: Statement of Gigi B. Sohn, president and co-founder of Public Knowledge: "We expected Comcast would appeal the Commission's order. The company opposed it every step of the way, even as they failed to disclose their throttling of Internet traffic. We believe the Commission will prevail and the rights of Internet users will be protected."

Update 9/4/2008: Martin responds to Comcast lawsuit: we still want answers

Elsewhere: BroadbandReports, GigaOm, Bits NYT

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Who should derive revenue from remote DVR systems?  According to a panel of the Second Circuit Court of Appeals Cartoons case, the revenue should not go to the content providers.  This decision, grounded in three very narrow interpretations of the Copyright Act, works a shift of potentially significant revenue away from content providers.  Hopefully, it will be challenged and reversed on rehearing.

The case seemed simple for the content providers, but with judicial panel sympathetic to the other side, it became what is a potential nightmare for copyright owners in digital environments.

            A recurring issue today in court is who control or has an advantage in the newly emerging digital and elated markets.  Are technologists like Google in control with a right to use any content any time without permission, or do we still value the content creators?   This is not a philosophical issue and the combatants are not professors or mavericks.  They are large companies with billions of dollars at stake.  This is the era of the information wars.

            In the Cartoons case, Cablevision implemented a remote DVR system, allowing customers to select, store, and later play cable broadcasts.  In the system, when cable programs are received by Cablevision, they are routed through a buffer (buffer 1) and copied briefly while software checks if any customer had requested copying of the program for later replay.  If there was a request, the program would be copied into a server (buffer 2) and held for later viewing by the customer.  When the customer later desired to watch the program, the DVR system delivered a performance to the customer’s home video.  Variations of this system are widespread in the cable market and are a robust competitor to home recording systems.

            Cablevision did not ask for licenses from the content (program) providers for copying their programs or publicly performing them at times other than the original transmission.  It simply implemented the system and charged customers who desired to use it. 

            The Second Circuit concluded that this was fine – a major corporation (a cable company) could reuse another company’s copyrighted product without permission or payment.  This was a complicated decision, but fundamentally, a choice by the panel to turn potentially billions of dollars away from the creative parts of the industry to those who copy and retransmit.  It was a wrong decision.

            First, the panel held that copying was not copying if the copied image lasted for only a second or two.  So, the entire line of cases started in the Ninth Circuit’s MAI decision remains intact, but now seems to become a question of …..   I do not know what. 

            Second, the full content was copied into buffer 2 by Cablevision’s system.  But, no, cablevision who charged for this service, did not make the copies – the customers did – at least if you believe the panel of he court!

            Strike 2.

            Strike 3 is when the court held that, when the customer who caused the copy to be made, eventually asked for it to be performed in the customer’s home – this was not a “public” performance.

            This may be among the worst appellate court decisions in copyright law history

My full-length article about the practical problems with trademark fair use (and possible reforms) is now available on SSRN. It will appear in the Iowa Law Review at the end of 2008. A shorter “prequel” was published earlier this year.

This is the abstract of the new paper, entitled Rethinking Trademark Fair Use:

The ever-expanding scope and strength of trademark rights has caused justifiable fears of a threat to free expression. Until now, however, concerned scholars generally focused on perfecting the substance of legal rules that balance free speech against other goals. This effort is misplaced because most cases raising these issues in recent years ended in judicial decisions that favored speech. The real danger arises from the procedural structure of trademark law’s various “fair use” doctrines, which generate excessive ambiguity and prolong litigation before ever reaching such positive outcomes. Resulting administrative costs discourage speakers from using trademarks expressively in the first place, creating a classic chilling effect. This Article is the first to analyze these problems with trademark fair use comprehensively and recommend pragmatic reform to address the problems. Instead of adding more bells and whistles to already complex law, we should craft simpler affirmative defenses that reduce uncertainty and allow for quick adjudication.

I’d welcome any and all comments, either here or off line!

They say (whoever "they" are) that good things come in threes, and that certainly seems true for law enforcement against spammers this week. In New York, Adam Vitale was sentenced to 30 months in prison and ordered to pay $183,000 in restitution for a week of spamming AOL back in 2005... In Illinois, an FTC settlement requires Spear Systems and company executives Bruce Parker and Lisa Kimsey to give up $29,000, stop making "false or unsubstantiated claims about health benefits" of their products, and bars them from violating CAN-SPAM ever again... And finally, in Seattle, the Robert Soloway case continues... More...

Diane, who is four years old, is a huge fan of the popular TV character Dora the Explorer. For her birthday, she received four Dora DVDs. Given Diane’s habit of scratching them, her dad has begun to create backup versions. That day, Diane brings home her kindergarten class photo, which was taken by a local photographer. Josee digitizes the photo and sends a copy to Diane’s grandmother.

If Industry Minister Jim Prentice’s Bill C-61 becomes law, all of these copying activities arguably violate the law.

Bill C-61 does not allow users to make backup copies of DVDs. The act of backing up the DVD is an infringement. Moreover, in order to make the backup copy, users must typically circumvent the copy-protection on the DVD, also an act of infringement.

For decades, Canadian copyright law has vested copyright in commissioned photographs – like school photographs – in the person who commissions the photo. Bill C-61 reverses that practice so that copyright now belongs to the photographer. (repeal of Section 13.2) Assuming the photograph came with an all rights reserved restriction, the act of distributing the digitized photo to Diane’s grandmother now violates the law. (Section 29.21 (1)(e))

I'm pretty sure that every Canadian reading Boing Boing knows about this law and what's wrong with it, and I hope you've all contacted your MPs. But the point of these posts is to help you communicate to your less tech-savvy friends about these issues. Did you email your grandmother a photo of your kids' kindergarten photos? Call her up and tell her that you won't be able to do it again with the grade one pics next year unless she calls up her MP and puts him on notice that he'd better oppose the CDMCA or lose her vote. Did your brother back up his DVDs to his laptop when he went away to university? Call him now and let him know that he'll be a criminal next year unless he calls and writes to his MP and lets her know what he thinks of Bill C-61.

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