Download and watch the episode here:
This Week in Law 253
Denise Howell: So where exactly does Ronald McDonald stand on Net Neutrality? We’re not going to answer that question but we’re going to talk a lot about Net Neutrality, open competition what the EU thinks about it, and were going to talk about trademark parody, satire, and whether Evan and or Stephen Colbert should be canceled, all next on This week in Law.
Netcasts you love, from people you trust. This is Twit! Bandwidth for this week in law is provided by Cachefly at cachefly.com
Denise: This is TWIL, This Week in Law, episode 253, recorded April 4th, 2014
Chewy Vuitton Sit!
Hi folks, your joining us for This Week in Law where we bring you some of the most brilliant people I've ever had the chance to come into contact with we're so lucky to do the show and you're lucky to be listening, because what we do is we help you understand all those difficult issues at the juncture of technology and law; Net neutrality being one of the rockiest these days and to help us out today we've got Prof. Daniel Lyons from Boston College law school who is a scholar in that area, telecommunications law Internet regulations in general. We are so thrilled to have you Daniel.
Daniel Lyons: Thank you. It's so good to be here.
Denise: Also joining us - it's been too long; Marty Schwimmer our resident trademark specialist. There've been a lot of good exciting and interesting things going on in the trademark arena since last we had Marty on the show. So we're so thrilled you could come back.
Marty Schwimmer: Denise, it is good to be back.
Denise: And joining us from Chicago Illinois and the law firm of the Info Law Group is Evan Brown. Hello Evan.
Evan Brown: Hi Denise. Great to see you as always, this should be a really fun conversation. I'm looking forward to it.
Denise: It’s great to see you too. I think will start with the meaty, meaty, stuff since we've had lots of people on trying to help us get our heads around what's going on in the wild, wild and woolly world of net neutrality since the Verizon decision, so I think we'll start there and we'll get Daniel’s take and try to gets through some of the thornier issues. Why don't we start with a couple of things that are much in the news this week; first of all is Reed Hastings coming out and saying we did this deal with Comcast, but our feet were really held to the fire to make that happen. The FCC this week has sort of responded to that and said we're not really going to expand net neutrality based on what happened there Netflix. Thanks for letting us know Reed Hastings. Can you give us your take on these developments Daniel?
Daniel: Sure, it's a good example of the fact that net neutrality is a somewhat elastic term that means different things to different people. Traditionally what most people have thought of as net neutrality has been about discrimination in the last mile the wires that go into your home that Comcast or Verizon or whichever providers are providing to connect to your house to the Internet. One thing that comes out of the Comcast Netflix debate is that it allows us to correct a little bit of a misnomer, which is that a lot of people sort of assume without much analysis that Netflix actually pays very little or nothing to get its content up to the Internet. That turns out to not be true. Netflix has traditionally partnered with a number of intermediary companies like Cogent communications and level III. Companies that are responsible for interconnecting Netflix service with Comcast and the broadband server - I'm sorry the Comcast and the Verizon's of the world. These are transit providers and interconnection providers they operate deep in the bowels of the Internet and we don't really know much about them. The recent dispute between Netflix and Verizon has really brought them more into the spotlight. Traditionally Netflix pays companies like Cogent to carry their traffic to the Internet and then Cogent is obligated to make sure the information gets from their network to Comcast or Verizon or the other broadband networks that carry that traffic through to the user consumer. The problem recently has been that Netflix has grown so much. I think they are sort of like one third of all Internet traffic during peak times. The amount of traffic that they are pushing through is overloading the connections between Cogent’s network and the networks of broadband providers like Comcast and Verizon. Cogent in order to make sure that Netflix traffic move smoothly through the networks that make up the Internet they need to upgrade the connections between Cogent’s network and Comcast and Cogent was of the view that Comcast should pay for some of this and Comcast was of the view that if it's Cogent's traffic that’s causing the connections to be overloaded that Cogent should be on the hook for it. So while Cogent and Comcast are fighting over who's going to pay for the upgrade it is Netflix consumers that are suffering because it's Netflix traffic that’s getting caught at the bottleneck. So my sense is that Netflix got tired of being stuck in the middle of this dispute and cut a deal that is essentially eliminated the middleman rather than going from carrying their traffic from Netflix to Cogent and then from Cogent to Comcast. They cut a deal directly with Comcast, so that Netflix is connected directly to Comcast in order to make sure that the traffic would carry through without interruption. From Rudy Hastings perspective it seems to me that you pay one company or you pay another. So there shouldn't be money from one pocket to another, but Hastings is using this as an example to show that Comcast may be increasing its footprint in the upstream in the interconnection and transit space and is hoping that the FCC will take a closer look at those types of agreements going forward.
Denise: Alright, so further on the Comcast front is this rumor that Apple is working on a deal, and none of this is confirmed. It’s a sort of sources close to the negotiations tell the Wall Street Journal kind of thing. That Comcast and Apple are working, and similarly Apple was working previously with Time Warner on a similar deal to give - to do some sort of deal around Apple TV, where the cable companies subscribers would have access to Apple TV and that - and here's where the net neutrality piece comes in; things delivered via Apple TV would get preferential treatment. This is one of those kind of free market hey, you know, we’re going to do deals and this is what makes sense and this is how companies compete with each other kind of arrangement, but it's definitely raising eyebrows and causing people to be concerned about the precedent it might set. Again, it's hard to talk about something that is not confirmed, and hasn't happened yet, but Daniel I'm curious to get your take on these kinds of arrangements.
Daniel: most definitely skirting at the edge of net neutrality, so, although the Verizon court struck down the net neutrality rules for providers generally Comcast remains bound by the net neutrality rules by virtue of the commitment when they assumed the NBC universal rights. 1 of the conditions of them being able to purchase the NBC Universal Empire was that they had to agree to abide by net neutrality restrictions, at least until 2018. So the question here is whether the deal they are cutting with Apple is a net neutrality violation or not. Based on the limited information that's out there so far it looks like it fits into one of the exceptions to the net neutrality rules, although it's unclear whether that was exactly what the FCC had in mind when they wrote the exceptions. Net neutrality was never meant to apply to all of the formation that's coming through the Comcast wires into your house. The FCC recognized that Comcast and other broadband providers are not only your Internet provider. They also do other services as well, and those services share some space within the wire to your house and a lot of those services won't work unless they get some sort of priority treatment. The best example of this is cable television. Cable television, because it seemed or lead data intensive needs a priority part of the broadband network that is coming into your home. So in the event that there is congestion Comcast is allowed to send its cable product through first in order to make sure that the cable customers get the content that they purchased even if it means that the broadband side is getting slowed down. This exception was an exception known as the manage services exception or specialized services exception. In addition to cable it would apply to traditional telephone service, or home alarm service is something that broadband companies are starting to dabble in; anything that is not traditional access to the public Internet. The question here is whether Comcast can take advantage of that exception for deals that they are striking with someone else. In this case, if the rumors that the Wall Street Journal is suggesting are true the idea was that data coming into your Apple TV unit would not be carried over the public Internet the way that a YouTube video or a Skype call is, but instead would get priority treatment in another part of the broadband pipe the same way that Comcast’s own cable services get. That means that in the event of congestion your Apple stream would not be interrupted. If you look closely at the details of the NBC universal merger it seems that the FCC thought it was okay for Comcast to strike these kinds of deals with third parties, as long as they make similar terms available to any other interested party - sort of like the post office, anybody can get regular first class mail. If you want to pay more you can get priority mail delivery, but the post office couldn't offer priority mail unless they made sure that everybody that walked in could get priority mail if they chose to. Generally, I think this is a good thing. I think we are as video is increasingly dominating the Internet marketing plays we’re looking at new and different ways for broadband providers to price the products that they're offering to consumers. Sometimes these sorts of things can look anti-competitive on the surface, but wind up in the long run to be a good thing, and one example of that would be the deal that Apple struck with AT&T for the original iPhone. For the first few years of the iPhone the only place you could get an iPhone was from AT&T and people thought that that was anti-competitive and was hurting Verizon and T-Mobile and other smart phone companies that can't off for this thing that everybody wants, but that turned out to be a good deal in the long run because it led to Verizon pouring money into android as an alternative, and now we have robust facility-based competition between two different operating systems - IOS and the android system. I think that Verizon's actions, along with Google's to help wake up a sleepy smart phone market would not have happened if AT&T would not have given a big bunch of money to Apple in order to be the exclusive provider of the iPhone. I think it's important for the FCC to keep an eye on these kinds of deals to make sure that whatever agreement that gets struck is one that passes traditional antitrust views, but generally I think it makes sense to allow broadband providers to experiment in this way.
Denise: Marty, do you think this is a little bit - for them to sneak through this managed services exception and say okay if it's coming through on an Apple TV - that's not really the Internet.
Marty: Why is it not really the Internet?
Denise: well, that's what I'm saying - I think it is. It's just deciding what they're going to classify as Internet are non-Internet. It's just another box hooked up to your Internet connection. And again, because this hasn't happened, but if it does the box it says Apple TV is going to have a better caliber of service than the box that says Mac mini or some other way of bringing the Internet to your television screen. Does that seem like just crawling through a loophole in the net neutrality laws?
Marty: There is cable that comes out if your wall that is using the IP protocol and then there are a variety of devices that connect to that. I happen to have a Google TV that connects to it in one room and I have a Roku box in another room. I don't understand how you can say that one is Internet and one is not. I don't get the loophole.
Denise: Do you get what I'm trying to ask here Daniel? It is all the Internet and by simply saying that we're not going to treat in Apple TV as we would another Internet connected device, because we've done a deal with Comcast; doesn't that seem problematic?
Daniel: It does seem problematic, and it seems like a run around the net neutrality rules. If the whole point of the rules was to make sure that whatever's coming from the public Internet looks and walks and talks exactly like every other packet that comes from the public Internet. It is not necessarily problematic. I think the difficulty lies not in whether this is or is not a legitimate exception to the net neutrality rules. But whether the net neutrality rules still makes sense in an increasingly diverse product market. So if you have four different streams that come through the Internet simultaneously and one is e-mail and one is HTML webpage one is part of a streaming video conversation and one is a telemedicine stream; someone is preforming surgery in Missouri and is getting assistance via telemedicine app by a surgeon in New York. So all four of these streams had a juncture at the same time where we need to prioritize them. The net neutrality rules traditionally would say you can give priority to one service over another - that they'll need to be treated exactly the same and from a user perspective, I'm not sure that it makes a lot of sense because the delay in package delivery varies depending on the service that you’re receiving. If I get a to lay in the e-mail package it's going to be imperceptible to me as a consumer and similarly, if I get a delay in getting part of a webpage maybe the webpage loads a little bit more slowly by a few microseconds; but a delay in a streaming video stream ends up with that weird skip thing that you get when you have… And it degrades the quality of the connection. When we talk about the telemedicine app it's even worse. The FCC has been dealing with this problem. They had what they called an exception to net neutrality rules for reasonable network management, but they never really to find what that was, and they never really got to the point of thinking whether different uses of the IP protocol would require preferences or not. If you accept that some services are hurt by congestion and some are not and therefore, you might need to prioritize some over others in the question becomes, how do you prioritize? Are you going to have a Comcast guessing and looking at each packet that comes in and guessing based on what it is, which one gets priority over others? Or you could have the - doesn't do that for the right? To offer some sort of priority access in order to... And then allow companies whose services need prioritize nation to pay for that product and that's the way I see this sort of Apple deal. Apple is recognizing the streaming video is the sort of thing that can suffer immensely if it winds up hitting a congestion roadblock and so they're trying to signal through their paid agreement that this is the sort of thing that we pay for prioritization. It's just a marketing and allocating scarcity.
Denise: The problem with that approach from my perspective or just to play devil's advocate is that I think everyone feels that whatever they are delivering over the Internet needs to have priority, or at least needs to be on an equal playing field with their competitors. Curtis Franklin is a tech journalist, he was on one of our sister shows here in on this week in enterprise tech last week and the scenario he spun out in response to this rumored deal was what if someone like Walmart came along and decided that in order to - and I'm not sure I'm paraphrasing him exactly. But the notion was in order to compete with an online retailer like Amazon made it so that their web page - we were talking about a couple of packets dropped for e-mail or a webpage just doesn't matter. But if Walmart consistently outperformed Amazon in its user experience it might well give that site a competitive edge. The fear is that everyone would need to be paying Payola to the online service providers in order to ensure that their site is loading in the most efficient and consumer friendly way possible. The thing that disturbs me about that notion and obviously we can talk about free markets and competition and having people pay for the service level that they want delivered, but the consumers are paying for it too. You're paying on the consumer end or on the business end for not just Internet access, but a certain level of speed or quality to that Internet access. At present anyway the agreements with consumers and businesses do not specify that that access will not only vary by network traffic but will vary by the deals that we've struck.
Daniel: A few different things; first of all, there are a number of potential bottlenecks throughout the networks of networks that make up the Internet. You're never going to be guaranteed an uninterrupted experience because it depends on far too many hops. What you're seeing, I think, is the development of Internet markets as sort of more of a two-sided market. One where because you delivering content from one side to another you wind up collecting some of your cost from both players. That can actually be pro-consumer in a way. One example of this is your local supermarket. It is one of those dirty little secrets that a lot of people know that shelf space is not allocated at random that some companies pay additional money in order to have their product placed at a higher or lower shelf - a shelf that is at eye level or things like that. That's money that comes into the grocery store chain that helps contributes to the ongoing operation and allows the grocery store chain to then offer its goods at a lower price to its consumers; prices would be higher otherwise. If consumers were footing the entire bill of the SGNA required to run a grocery store there is a sense in which a non-net neutral world would open up opportunities for revenue to come from the googles and the apples of the world that would then offset otherwise potential increases and dare I say lower prices for consumers on the other end. There is no inherent reason why consumers should be footing the entire cost of operating broadband network, but that is one of the takeaways of the net neutrality rule.
Denise: Evan, one of the things that Daniel mentioned, here in our discussion here and that's the notion that we're talking about consumer services by and large, and people wanting to have the best possible video watching experience or shopping experience or whatever it is that they're using the web for and then you get to something like a medical stream where somebody has a public health reason to have strong, reliable, fast Internet staying up and not being interfered with by other packets. That's the kind of thing that I think lawmakers would hit on and want to guarantee some minimum level of efficiency and deliverability, don't you think?
Evan: Yes and the example of telemedicine is a nice easy case to be made for priority being given to a managed or a specialized service because it so clearly encapsulates the public health, public safety life and limb sort of concern. Clearly at that end of the spectrum I don't think many sensible people would disagree that there ought to be some mechanism for priority to be given to those packets. Just because I'm torrenting a movie somewhere in the neighborhood of - and the network shouldn't slow down - the fact that somebody could suffer greatly because telemedicine can’t be practiced correctly. The difficulties come obviously in the gray areas - everything that comes in between those obvious examples, and the clearly Monday and garden-variety things which a proponent of - well, regardless of your perspective on network neutrality - neutrality would just stay as ordinary traffic on the network. It's much more difficult on the gray areas like Apple TV or this Apple situation that is going on here, because it's different than what we ordinarily see. I think part of the problem that it's Apple and then we take the pathway up, oh why is Apple involved here? It's like coming out of the same heritage as iTunes and all the content delivery that Apple is famous for, or has become famous for in the last 10 years. So if it weren't Apple, there may not be quite as much of a problem drawing comparisons to something that we wouldn't argue is a specialized here. I really intrigued by your work on this Daniel because one thing that I've noticed in what you are saying and you were alluding to it in your most recent comments - that there is nothing inherently wrong with these sorts of arrangements. And I think you also said that more in terms of data caps, which is a different issue, but a related issue. There's nothing inherently wrong with it. So seeing how… You're asking the question what is the proper way of regulating this. That adds a new perspective to it. Denise when you were saying that there are these potential consumer problems that could be had - it's going to be bad for the consumer, like with the Walmart situation, Walmart outbidding outspending and doing whatever and they got priority over Amazon - aren't a lot of those concerns really hypothetical at this point? Daniel I know there's something else that you're saying here that we really ought to wait until there truly is an antitrust harm or some other harm. I'm glossing over a lot I know so I hope you'll help fill in the details of what I'm saying here. A lot of those concerns seem hypothetical at this point. There's not a whole lot of evidence to point to that there really is harm or that the harm is all that plausible, and it could be the exact other way around. What is your reaction to that Daniel - sort of drawing that comparison there?
Daniel: I think that's right. And I think one of the difficult traps that we fall into in Internet law is assuming that the way that the Internet is now is not necessarily the way that the Internet has to be going forward. I think that that's a mistake. The Internet that has emerged up to this point is one that was largely filled with e-mail, webpages, and a lot of text streams that were not latency dependent not very bothered much by things like congestion. But as video has increasingly filled the space now, these other applications are coming along. We're beginning to see not only a different user experience, but a wider range of content applications that are available, but also a wider range of what consumers are using the Internet for. So I'm not sure that it makes sense for a one-size-fits-all policy to continue to be applied to Internet traffic management for example. I think it makes sense to allow broadband providers and content providers to experiment with different combinations like as I mentioned earlier about what AT&T and Apple did with the iPhone to try to introduce new combinations. The new products, even if it's not the sort of thing that we generally think of as the Internet traditionally. You're absolutely right; the antitrust law is an important backstop to this. I think there is a huge difference between, for example, Apple paying in order to prevent its self from suffering in the event of congestion and Apple paying Comcast to target YouTube clips and degrade them that would clearly be an anti-competitive agreement. Not the sort of thing that I think antitrust law generally would allow. It's not that there should be no law but I think that there should be a presumption in favor of innovation, allowing companies to try new things and in the event that they are anti-competitive we bring down the hammer and say no, you can't do that. The net neutrality folks really like to talk about permission-less innovation and I think it's a phrase that should apply with regard to broadband providers as well. Let companies innovate and introduce potentially new business models. If consumers like it, they'll take it up. If they don't sure if it causes consumer harm then you get regulators involved in order to limit the experiment. So in ex post enforcement rather than an anti-limit on what you can do.
Denise: You've written about one example of that with Metro PCS and the programs that they were offering customers. Can you explain that a bit?
Daniel: I think this is actually really good example. Obviously net neutrality has going for it the fact that the goal is to promote innovation within content and applications. It comes at a cost of eliminating or at least limiting the amount of innovation that can occur among broadband providers. Metro PCS was a good example of this in 2008 or 2009 they were facing a severe competition as Verizon and AT&T were jumping to forging networks and Metro PCS didn't really have the bandwidth or the spectrum to compete head-to-head against these giants. They came up with an alternative pricing plan that was $40 for unlimited talk unlimited text unlimited web browsing and unlimited YouTube video clips. They cut a deal with Google to where Google was going to compress YouTube so that it could run over Metro PCS’s spectrum limited network. So the customers bought the Metro PCS’s plan, they wouldn't give full Internet access, not all the bells and whistles that you get with a Verizon or AT&T plan, but to get something other than just talk and text. They would have some web browsing some YouTube video clips and the benefits to consumers, was that it was at a fraction of the price that Verizon and AT&T were charging for the full bells and whistles plan. So Metro PCS was going for a very specific segment of the market. It's a market of people who were very cost-conscious who wanted something more than what a feature phone or what an old flip phone could give them, but couldn't afford the plan of the major carriers so hitting sort of that middle market, but unfortunately this was seen as a net neutrality violation, because they were offering access to YouTube video and no other video on the same terms. Several consumer groups brought complaints to the FCC and ultimately Metro PCS backed down. So the take away for the Metro PCS saga was at least when the net neutrality rules were in place you had to offer the entire Internet, or none at all. That's a very different world than what we see occurring in other countries. In Turkey or in Argentina or Hong Kong some of the most popular wireless plans are plans that offer talk, text and some limited amount of Internet capacity. Facebook phone is the really popular one; people are necessarily interested in paying for unlimited access, but they want to access Facebook on the go, so they buy a plan that includes talk, text and Facebook or a plan that includes talk, text and twitter, one app but nothing more. Those sorts of plans are at least suspect under most versions of net neutrality here in the United States.
Denise: Right, so beef in IRC is making a comment - kind of a crack that gets right to the heart of this. He said the next step is water companies charge more for increased water pressure and clean water is extra as well. Which I think the point of that is that there is a perception that a telecommunications service like the Internet - that limiting down portions of it for a lesser cost isn't really in the public's interest, but that there is a strong public interest in access for all. And I guess the question becomes, doesn't make sense to have the business side, subsidize that. Do you have a response?
Daniel: Access for all at what cost? Broadband networks are free. They are literally hundreds of billions of dollars that were invested in building out and maintaining these networks and some estimates are that it would be up to 20 or 30 or $40 billion annually in order to make sure that we continue to get what we need. It is not clear to me that at current pricing strategies that the notion that you pay for all of the Internet or nothing at all - that those who can't afford the all price are benefiting. There are a number of people who simply are on the wrong end of the digital divide because they don't have an alternative to the unlimited Internet model. This is especially true in wireless plans. Part of the need for price differentiated services is to meet the middle market, the people who can't afford the full bells and whistles plan, but don't want to be left behind by the digital revolution either. There are some people who just don't want everything. One of my colleagues here at BC is very fond of “I don't really go on the Internet all that much and I don't need access to everything”. What I need access to is my remote server and Netflix and if I had that that's 90% of my time online. If you've looked at the amount of time that you spend online you'd find that 80% of your time is spent on only a handful of sites anyway.
Denise: You were saying before that you could have the Internet provider try and guess what it is that you - how you would prioritize Internet usage. Do you foresee a future where maybe a way that providers compete with one another is to allow people to check a box and say this really matters to our business or to our household and this does not and prioritize traffic that way?
Daniel: I think it's possible. I think it's good for those types of plans to be introduced into the marketplace. I don't think they would ever come to dominate the marketplace because I do agree that sort of unlimited Internet access is what most of us demand. One of the differences between broadband Internet access and the water company is that if the water company tried to charge you extra for clean water, there's really nowhere else you could go. The broadband market is at least workably competitive. In most of the States you have at least two providers - the cable company and the phone company and if one of them tries to undercut you could switch to the other. Two providers is not as good as three or four or five, which would be a much better facility space competitive model, but technology is moving us in that direction, depending on what service you are talking about you have a wireless option or up to four or five different wireless options for certain information over broadband networks in addition to your home connection and satellite is getting better. It's still not perfect, but prices are coming down and latency is coming up and we might see the time shortly when satellite might be a good competitive alternative to the wire base Internet that we have now the same way that satellite television, DirecTV and dish networks of the world where what finally shook up the cable television monopoly.
Denise: I have one more question, and then I'm sure that Marty, and/or Evan may have some comments or questions as well, before we get off subject here. I know you've written a lot, retransmission consent and the cable business as well, I'm wondering if there's a parallel here to the way that that industry has been regulated to allow broadcasters to reach their audience and the way that the Internet may be regulated to allow video broadcasters to reach their audience or just anyone sending packets over the net. Do you see any sort of parallel between retransmission consent and must carry and the whole net neutrality conundrum?
Daniel: I think there are a number of parallels, the fact that the cable providers are a similar two-sided market and it's unclear who's got the market power at any given time. When cable first came out, they were literally picking up broadcast signals for free and retransmitting them to customers. It is one of those secrets hidden in history that the original cable model was not HBO and Cinemax and Disney channel. The original cable companies were simply picking up over the air television and rebroadcasting those signals to people who couldn't get good signals through rabbit ears on their TV. Eventually the broadcaster said look, if you're making money off of our signals we need a cut of that consent rules originally came from. Congress agreed and told the cable companies that they couldn't retransmit a broadcaster’s signal without their consent and the idea was that broadcasters would withhold that consent in exchange for some cut of cable money. When CBS first try to hold out in 1993 they found out quickly that although cable companies liked having CBS they didn't like it enough to pay for it. So they held the line and the cable company said fine our customers just won't get CBS they'll get everybody else. CBS ended up agreeing to allow their signal for free over the cable companies’ networks. NBC and Fox and ABC held out for something different. They also didn't get any money, but they agreed - but they managed to get space on the cable system for another cable channel. So Fox used their space in order to create the FX network and ABC used their space in order to create ESPN2. So these were deals that were good for broadcasters because they were making more money and they had a cable channel in addition to their broadcast channel. But it wasn't necessarily good for broadcasting because ABC is now splitting it's time between its broadcast network can ESPN2 in a way that it didn't before. So if Congress’s goal was to boost broadcasting it wasn't clear to me that this goal was really well served. For a long time it really looked like the market price for broadcast content on a cable network was zero. If you fast forward now to 20 years later, retransmission consent is suddenly at a huge amount of money. It's something like $2-$3 billion a year that cable companies are paying to broadcasters and that amount is growing as broadcasters are tying up more content that customers really want. Customers are making sure that cable companies have their broadcast channels, and so cable companies have to pay retransmission consent. It's a market that's emerged over time, and sometimes the dollars flow one way and sometimes it's quite possible the dollars will flow another way. That is kind of what “must carry” was - which was forcing cable companies to carry those stations that the cable company didn't even want to dedicate space to otherwise. The fluidity of the market over time shows that it was a mistake to assume the way things are is the way they're always going to be. If you thought as the result of CBS's breakdown and negotiations in 1993 that “oh well I guess broadcasting is always going to be available for free on cable systems”, you'd be really wrong and she would have failed to predict the because of the ability of the two sides to negotiate.
Denise: Ok, I’m glad I wasn’t crazy in thinking that there was some kind of parallel development there or an analogy to be drawn. Evan, do you have any further questions or thoughts for Professor Lyons?
Evan: I’m impressed by the scholarship you’ve done on this Daniel about just advocating for an ex-post enforcement rather than ex-anti. It reminds me a little bit of conversations we’ve had on the show before where we talk about Google Glass and it seems like I get tomatoes thrown at me in the chat room when I say - well for example it was a good thing that the woman got arrested for using Glass while driving because it’s an important public safety issue and what I’m really doing there is advocating for an ex-anti sort of enforcement not giving enough time and I’m critiquing my own commentary here by saying that we’re not giving enough time to see how Google Glass will be used in the marketplace; to see if there is actual harm. Sure, we have to wait until at least 10,000 people are decapitated in traffic accidents because of it until we start to regulate it. I see the parallel to that and it makes me a little surprised that there isn’t more of a sentiment that comes to the net neutrality debate saying hey why are we so quick to say that there must be a neutral network or that there must be an open internet – no packet discrimination or what have you. Why don’t we wait to see that there’s some harm here. I see a little bit of a paradox in sort of the vox populi with how those things are going. So again I think it’s interesting with the things you’ve said along those lines about the way these things should be regulated, seeing where there harm is going to be.
Daniel: I appreciate that and I think it’s really important to recognize that lack of ex-anti rules doesn’t mean that there is no law what so ever. Anti-trust law remains a backstop to this market as it is with every market in the United States. To make sure that when competition fails to protect consumers that regulators can step in. I think one of the big arguments that will take place in the space going forward is whether the right regulator to step in is the Federal Trade Commission which usually regulates anti-trust abuse or the FCC which has a good understanding of the way that information networks in particular operate. I guess I’m a little bit partial towards the latter but I don’t have a strong view either way as long as the rule is one that looks at harm to competition and not just harm to a particular competitor and doesn’t prefer business model over another.
Denise: We have a couple of winners in just the last recent couple of minutes of discussion. 1 is me because I now have our first MCLE passphrase for this week’s episode of This Week in Law. If you’re listening to the show for continuing legal education credit you may have to demonstrate that you actually watched or listened to the show so we put these phrases in case you have an oversight board that wants to be able to have that shown. Our first one is going to be “hashtag cancel Evan” in light of - it could be throwing tomatoes, but let’s go with hashtag cancel Evan. The other winner I think is anyone playing the TWIL drinking game with today’s episode which of course includes imbibing whenever a Monty Python reference comes up or any sort of Latin, so ex-anti and vox populi - you guys are doing well on your Friday so far. Marty, do you have any comments on net neutrality or questions for Professor Lyons before we move on?
Marty: No, I’m out of my depth here. I’m just listening and learning and I’m trying to write down quick Monty Python references into my segment.
Denise: This is good. Hasn’t Weird Owl done a Monty Python parody? If not he should. Let’s move onto some trademark related stuff with Marty and talk for a bit about Parody and Satire and how trademarks can be used and not used in that context. There is a long history of people pushing the legal envelope here and some recent developments down in Cajun country that Marty can bring us up to speed on. Marty why don’t you first give us the background of the law in this area?
Marty: I have a big note to myself here to not forget the reason why I wanted to discuss this which is not really to educate about the Satire and Parody distinction and trademark law but just to bring up as a topic as to whether the state of Louisiana is improperly misusing the – to suppress political speech that it is not satisfied with.
Denise: Tell us about Dr. Seuss and Cats not in hats.
Marty: To set the stage for this there is a lawsuit in Louisiana right now where the plaintiff is the Lt. Governor of Louisiana and the defendant is MoveOn.org and it does involve Move On putting up billboards that parody or just copy a slogan of Louisiana’s tourism push. As background let’s talk a little bit about the cat is not in the hat and warn the audience that we haven’t worked with the visuals yet. We know that there’s such a thing as Satire and Parody and I’m not quite sure everyone could define it. The law seems to be this, “Parody” is a defense in both trademark and copyright cases but “Satire” doesn’t seem to be and courts have defined it as a parody will borrow the protectable mechanism of the original work to comment on the original. A satire will borrow some form of original work to comment on a different topic. Maybe we could get the cat in the hat back – could you return that? On the left is the children’s classic “The cat in the hat” and the right was a book “The cat is not in the hat” which refers to itself as a parody and it isn’t by Dr. Seuss but by Dr. Juice. This was a book that was published in the 90’s shortly after the O.J Simpson case and you can tell from the cover that it borrows Dr. Seuss’s font style, his drawing style, the text of the book utilizes distinctive rhythm and this is what the court said; “We’re determining that the subject of your book Dr. Juice is O.J. You are not commenting on Dr. Seuss, therefore this is not a permissible parody, it is a satire. You have borrowed Dr. Seuss’s protectable elements to comment on a 3rd party and therefore it is an infringement.”
Denise: It’s just unfortunate that the court didn’t do that in Dr. Seussian prose.
Marty: You’re right although sometimes in trademark and copyright cases the judges sort of feel like this is a license for them to be funny in their decisions and my reaction is please take my case seriously, don’t do this in prose. We have this distinction satire versus parody and it is criticized for many reasons. Can we roll the Weird Al clip please? Here’s the thing about Weird Al – does he really talk about the original work or does he talk about other things? I think that Weird Al embodies both satire and parody in that he will comment on the original work and make fun of it but then he’ll also make fun of food and the Amish and anything else that comes to his mind. As an aside it’s my understanding that Weird Al always obtains licenses to do his work.
Denise: Even though he may not have to?
Marty: Right, I think it’s more about life is too short to have a lawsuit. So Weird Al shows it as an artistic matter – the satire versus parody distinction is not all that workable. Let me give you an example where I think a case really made the distinction workable. Let’s roll the Ralph Nader clip please. You will recall probably that MasterCard has a somewhat well-known theme of commercials – the Priceless campaign in which they will show multiple images of the price of something. For example the father taking the kid to a baseball game and they’ll say that tickets cost whatever and the hotdog plus this and souvenirs cost that but spend the day at the ballgame with your kid is priceless. Ralph Nader ran for president in the year 2000 and he had a commercial that was clearly structured to refer to the master card campaign and it said – you just saw it that contributing to this candidate so many dollars and so on, knowing the truth is priceless right. Try on your satire versus parody distinction – what is the subject of this ad? The most direct message is he’s commenting on the role of money in the political system. Is he criticizing the master card? The southern district of New York in one of its more insightful decisions in this field of law said look works of art have more than 1 message. That many will criticize master card’s theme which is somewhat hypocritical to say listen you have to buy all these things like the baseball ticket in order to have this non-materialistic experience. Ralph Nader similarly talking about - he is making an anti-materialistic comment and he’s implicitly criticizing master card as well as criticizing the role of money in politics. It was found not to be infringement on trademark or copyright theory. That is an example of the satire – parody distinction becoming somewhat workable but then again you need to have a judge who gets the joke and understands these sorts of things.
Denise: I was really worried Marty when we decided to have you back on the show that you and I would devolve the show now that I’ve become a dog owner into This week in rescue dogs as opposed to This Week in Law. We have one more example right that may give us the opportunity to do that.
Marty: Here’s Chewy Vuitton - so obviously Louie Vuitton will have a variety of famous trademarks for hand backs. Someone came out with chew toys and this is Chewy Vuitton. Is this a parody? What is it commenting on? It shows you a different problem which is that there is this other aspect of trademark law which is the likelihood of confusion. I should say it’s the main aspect of trademark law. Does anyone think that this Chewy Vuitton chew toy derives from Louie Vuitton? The circuit court found not at all – no likelihood of confusion and also Louie Vuitton lost on a dilution theory much to INTA’s horror. Let’s go to the case in chief. The state of Louisiana promotes tourism and it has a motto “Pick your passion” - “Louisiana Pick your Passion” and it promotes tourism and other forms of economic activity in Louisiana. Moveon.org is an advocacy organization and it put billboards. This is a billboard and we learned from this case that you have 6 seconds to read a billboard when you’re driving on a highway. This is in Louisiana near Baton Rouge and it says “Louisiana, pick your passion but hope you don’t love your health. Gov. Jindal’s denying Medicaid to 242,000 people. Ok, home viewers, what is this? Is this trademark infringement? What have we got here? Do any of my panelists want to kind of do one off the top of their head?
Denise: I would but I’ve read your posts so I know the answer, or I know your take on the answer anyway. What do you think Evan?
Evan: Well the touchstone is likelihood of confusion so in my 6 seconds of driving by and seeing this, I need to ask myself whether I think that's state of Louisiana or more sincerely, the lieutenant governor's office is the source of the services that I'm being marketed in this billboard. That's what I'll ask myself, and all stop and think about that awhile.
Marty: What services are being marketed by the “Move on” billboard?
Evan: I think my silence is probably the best answer on that.
Marty: Okay so the trademark “Louisiana, pick your passion” is a registered trademark, and it's owned by the Louisiana Lt. Gov. As an analogy in New York we have the famous “I heart New York” trademarks and that happens to be owned by the Department of economic development of New York. The Lieut. Gov. Louisiana has sued and in anticipation of this doctrine that the parody has two comments on the original. They have argued that Move On is commenting on Gov. Jindal, but it is the lieutenant governor who owns this trademark. Because they are not commenting on him then they do not fall under this parody or cat not in the hat theory. Denise was referring to my post, and my reaction to that argument is that that is transparent sophistry. It's as if - many trademark owners or IP owners put their IP in holding companies and it's like Lady Gaga sang if you did a Lady Gaga parody oh, because my holding company owns my intellectual property you could only probably comment on my holding company, but if you're commenting on me you fall out of this parody exception. That is sophistry.
Denise: Right. Someone in chat is making the argument that a trademark owned by any public entity is owned by the people of the state, by extension.
Marty: It is worth thinking about who owns this. Who is it to the benefits of? I guess my question is, if you felt that the campaign was done poorly who would you complain to or who would take the credit? As I said in New York it is the Department of Economic Development that owns our various pro-tourism trademarks, but I think we have this un-formed - as I'm driving by on the highway I have this unformed argument that it is the state the government or perhaps the executive branch that I believe is responsible for these things, and for example, if someone was to misuse some sort of state indicia, I would say, well, they are falsely suggesting that they are endorsed by the government. It's hard to say who exactly owns it. It's even harder to say whether these are true trademarks. What is Louisiana really promoting when they say they are promoting tourism? What services are they rendering? That's the huge problem with this sort of trademark in this sort of case. I'd like to recommend that everyone go to the place or docket on this case. Louisiana has filed a preliminary injunction motion and it was heard yesterday. So Louisiana’s papers are up – Move On's reply. Most interestingly Louisiana has submitted a survey and I took a quick look at it, it poled 200 people in Baton Rouge. It showed people, and it was an online thing. So the billboard is on their screen and they showed them for six seconds, and they then showed the other one immediately after which is possibly a survey error. And they said who do you think these billboards came from the same source? And then they asked that question three times in a row, which also could distort the answers. They say that about 25% of the people surveyed believed that the billboards derived from the same source. 25% is actionable confusion to point that out. Their numbers may not be good, I saw some problems with the survey, we’ll see? Then we get this larger problem what is the confusion here, do I think that MoveOn is sponsored by Louisiana, what is the actual harm? Since we had the versus Merc exchange Supreme Court case, it’s not enough to win a preliminary injunction in an IP case. Where you merely say they did the wrong thing. They infringed, there was a likelihood of confusion, you have to show some form of actionable harm, what is the actionable harm in this case that the trademark law is supposed to protect? Do you think that MoveOn sponsored by the state of Louisiana? Do you think that the lieutenant governor is critical of Gov. Jindal?
Denise: Of the governor, yeah?
Marty: Right So, it’s a fairly unworkable theory. Granted satire and parity is a little bit of a mess by in the end let’s not lose sight of the fact that this state of Louisiana is moving to suppress a billboard that makes political speech. We can go a lot of ways, from this but let’s have some questions.
Evan: Yeah, couple of points, is there a copyright claim as well? That would circumvent these problems of consumer confusion and who’s sending the message and all this stuff there is a creative element to all of this?
Denise: Yeah, the design aspects.
Marty: There’s no focus on copyright in the papers, there could be a copyright claim because not only did they copy that Louisiana logo, but they referred to Cajun cooking which was the subject of one of the state’s billboards. So, there’s the potential for copyright but again you’d have that parity defense that it’s copied on the original. (Picture of billboard of MoveOn.org Lou!siana Pick your passion! But hope you don’t love your healthcare. Gov. Jindal’s the nine Medicaid to 240,000 people.) That is the MoveOn, I could not find a state of Louisiana one but there is something similar. (Picture of Louisiana billboard: Lou!s!ana Pick Your Passion Louisianatravel.com) obviously the logos are supposed to be similar.
Denise: Daniel, I have a hard time thinking that a court would let federal copyright law be the vehicle by which a state could quell critical political speech, don’t you?
Daniel: Well yeah, I agree this isn’t really my area of the law, but my knee jerk reaction is to think that political speech is the core of what the First Amendment protects. This seems, I would agree with you Marty, seems to me that this is quintessential to the strategic lawsuit against public participation, right?
Marty: Well, something like the Chewey Vuitton case is so much more difficult to address because it’s commercial activity. In a case like this where one is talking about the number one political issue of this decade for Colbert or for worse, healthcare. You can get more political speechy. That’s actually what the court in the Nader case said. This guy’s running for president, you can’t get more First Amendmenty then this sort of case, so absolutely very troubling that the case was brought at all.
Denise: First Amendmenty, I like it. Let me drop our second MCL E passphrase into the episode and that’s going to be, “dog with a purse”. I don’t know how we let Chewey Vuitton go by without making it some official part of the show. Our first passphrase leads into my next question for Marty on the subject of satire. This last week, we’ve seen a huge firestorm hit Twitter and the airways over Stephen Colbert ill-advised Tweet that someone at Comedy Central put out that was making a reference to some satire that Colbert did done on the show. Which sports organization was it, Marty? Somebody was trying to appease the American Indian population and Colbert came in and said “we’re going to do the same thing for Chinese people, we are going to establish a foundation and he called it something terrible, “Ching Chong dingdong”. Upset a lot of people, they tweeted a reference to that satire, so how does that fit into what we have been discussing?
Marty: So, to go on one aspect of the satire parity thing is that to a great extent, you need contextual information to get the joke. As a little bit of background, Dan Snyder is the owner of the Washington Redskins and as many people this know Native American groups have been contesting the use of the name Redskins for decades at this point. As on the side, I really see no vehicle in the trademark law any longer, to do anything about the name that ship has sailed. So Dan Snyder as an attempt to appease groups, he came out with the Washington Redskins Foundation for Native Americans or something like that. So Colbert in his show, made the joke about how great it is calm relations with a group by using a slur of the group in your foundation’s name. And he said, “in my example, taking a page from Snyder’s book, I’m going to have the Ching Chong dingdong be sensitive to Orientals or whatever foundation.” So, with context, with what you know about Colbert where you know where he stands and you get the joke. So you know it is antiracism joke not a pro-racism joke. It turns out someone at Comedy Central puts in a tweet that said simply “contribute to the Ching Chong dingdong be sensitive to Orientals or whatever foundation.” And there’s no link to any of the contextual information. So, someone who’s a Korean-American, and has referred to herself as a #activist previously and has done other Twitter bases forms of protests, said that that tweet itself was racist and began a cancel Colbert#. There is commentary that even her campaign was meant somewhat ironically and not to be taken at face value. Colbert has responded and he said who would have thought that a medium that limits you to 140 characters would lead to a misunderstanding. And I think we have a link to his video on our show notes in which he discusses the whole thing, and basically says what we just told you. Which is that, in its’ context. It is not a racist joke and if you take it out of context as it did in the Tweet it could be misconstrued as a racist joke. So it goes to show you (website: the two-way: “when the Twit hit the fan: ‘“I’m still here,’ Colbert says.) There we go. I think we have this link.
Denise: He’s attacking me now. We do. We have links to everything we’ve been discussing today on the show and even more at our delicious page. Which is for this episode is delicious.com/thisweekinlaw/253. If you want your primer for the show. That’s where you can go and get it. So Marty, I guess it’s just demonstrating what courts have to deal with when it is considering whether this parity defense applies, and the rule of satire that context is important to.
Marty: Well, as I said, I really thought the price list southern district of New York decision from 2000 was fairly insightful, but I also have to acknowledge that the judge, I think, had a level of insight and analysis that the viewer at home, in the 30 seconds that they see the commercial may not have done. In the Louisiana case, it is correctly pointed out that the person, the motors has but six seconds to evaluate. So, it’s very troubling when a judge will have lots of time, with lots of contextual information to evaluation the point of the work and that we have to face the fact that perhaps out in the street, out in the wild, people do misunderstand things or don’t have contextual information. Look at the people, would have seen the Colbert Tweet and not the original segment. I mean, was that a good reason to suppress Colbert that people don’t get your joke, but it is what it is.
Denise: Right, so you have one final example of how to do parity correctly that involved Ford?
Marty: Oh, you know what, as long as you say one final example, I should answer question that a lot of people are asking about, which is that Ronald McDonald commercial.
Denise: Yeah, in fact we were going to make this our tip of the week, I actually think we have a couple tips of the week. Let’s do this one now. Ronald McDonald and Taco Bell, if you’re going to use your competitor’s trademark. What do you need to bear in mind here, Marty?
Marty: As background, Taco Bell is having a commercial where they went out and found lots of people whose real name is Ronald McDonald. And they flew them in and they showed them whatever new product Taco Bell is pushing these days and all of these people’s name. Ronald McDonald’s are saying, “Wow, this is magnificent.” And I getting a lot of emails from at trademark blog, is this lawful? The sad thing is, I’ve been in trademark law long enough that I am seeing the same fact patterns. (Commercial advertisement for Taco Bell with persons named Ronald McDonald”). So here we go, it’s Ronald McDonald enjoying Taco Bell. In 1993 Ramada went out and found all sorts of people named Marriott. And they put them up in a Ramada and then the commercial was oh all these guys named Marriott liked Ramada. So Marriott sued and the judge says again the standard is a likelihood of confusion. You look at this commercial and if you look at this commercial you see what’s going on. Ramada has clearly gotten guys named Marriott as a joke to say that they liked Ramada. And here it is not a subtle commercial, people named Ron McDonald, who obviously don’t have orange hair or clown makeup like Taco Bell. So people see what it is. So I guess that tip of the week is, if you are going to use your competitor’s trademark, just don’t be confusing, that’s fairly clear, we see here this Ronald McDonald of Oak Ridge, North Carolina. Again, if you put these guys in orange hair and clown makeup may be, it will be kind of confusing, but we kind of know exactly what we’re looking at. So the tip of the week, don’t be confusing, be clear.
Denise: Got it and does the Ford Cadillac parody follow that rule?
Marty: I think the Ford parity can, do we have it? I know that I sent the link in. For some reason that Cadillac commercial during the Super Bowl hit a nerve. (Website video: Ford Cadillac commercial). What they’ve done here is that they borrowed the pacing and the editing of the Cadillac commercial. What is the person in the subject and the tone, what this is, is the person is talking about a sustainable, sustainability. They will have people walk past her in a way in which the original Cadillac ad does. There is no confusion.
Advertisement: female speaking, dressed in work clothes. “Landfills and use it to make good rich dirt. That’s why.” Female enters room, then exits dressed in evening wear, “yeah, look, it’s pretty simple. You work hard, you believe that anything is possible and you try to make the world better. You try. (Enters the vehicle, upside of giving the. Yes, Ford logo presents on dashboard). As for helping the city grow good, green, healthy vegetables, that’s the upside of giving a damn. Nespa, (Ford logo appears on screen, #Upside). So, the use of Nespa, I think is the only word that they borrow that was used in the original Cadillac. To me this is the perfect parity, you have borrowed enough to refer to the original, but you have not confused. So, that’s how it’s done. The client came to me and said how close can I come, I would show this Ford commercial, and say that’s the way to do it.
Denise: Cool, thank you so much Marty. Evan, I threw in another tip of the week. Not to throw you for a loop, but it’s out of your twitter stream that we were talking about it before the show. I think the tip that we could glean here is mixing Facebook and moonshine. Not a good idea. You want to tell us why?
Evan: Yeah, now the conversation gets more spirited, right? Yeah, this goes to that whole idea, this is the umpteenth time that we have talked about this, the potentially harmful effects of social media as evidence. There’s that guy near Tell City, Indiana, who was making moonshine with the still in his home.
(Webpage from INDYSTAR: Facebook pictures of a liquor-making still lead to arrest)
This isn’t the prohibition era, it’s better than making meth, which is what a lot of people in Indiana are doing. But anyway I digress. He posted the pictures of his still on Facebook and there you have it. He got arrested and I’m not sure where the criminal case is but. If you’re going to be making moonshine get a license for that, pay your taxes on it, and I’m sure that’s the real issues here, then charges all relate to excise taxes and things like that. The whole idea of unregulated liquor.
Denise: The flipside of this tip is you can brew beer at home but not moonshine.
Evan: I guess so, yeah I am not a, I don’t, I haven’t studied the nuances of that, but they sell beer making kits at Walmart. I suppose that’s a hint.
Marty: No, I have to interrupt, you can make moonshine at home. I have a client. I’ll give them a plug, Claw Hammer Supply, go look them up and buy some stills, I think you can make your own I’m totally serious. Make it for home use. But again, look out for the revenue workers.
Denise: Yes, absolutely. All right, our resource of the week is a little bit more elevated in its tone. It is from Daniel. We were having our discussion on retransmission consent, must carry, all of these are very important considerations and things to be able to understand and they are very complicated, so hopefully Daniel has written a primer on the retransmission consent, and must carry rules. Something that is very, very pertinent as the Supreme Court considers the AERO case.
(Webpage: TechPolicyDaily.com “Telecom Law Primer: Retransmission consent and must carry rules)
Anything you would like to add to this, or put it into context for us, Daniel?
Daniel: I appreciate the plug. Yes, so the piece is designed to sort of put into layman’s term. What the rules are regarding what the cable company carry, and what they can, and why it matters to you, the consumer who winds up footing the bill for these increasingly growing retransmission consent fees.
Denise: So, this is available at TechPolicyDaily. Another good resource that I had not yet come across before this but all kinds of good information there. So thank you very much Daniel, I know every time these issues come up on the show. I have to kind of go study up on them and try and get my head around on why they’re there and how they work and how they are such a huge, as you pointed out a 2 to $3,000,000,000 annually, driver in the broadcast arena right now. Any thoughts on the upcoming AERO case before the Supreme Court, Daniel?
Daniel: I think it’s a fascinating case, I’m not sure the Supreme Court has got the exact right posture for it, but that’s because I’m a telecom scholar, right? I’m not as interested in the copyright question about whether they can or can’t carry a broadcaster’s signal as much as I am telecom question, what is it going to do to the future of cable industry? Either AERO wins or we learn that, you can have an architecture that looks completely economically insane in order to fit the imagination of copyright law. Or they lose. Either way, I think you are going to see some pressure continue to be put on cable television. I think cable prices are growing such that consumers are looking for alternatives. AERO is one example of that, peer to peer networking is another example, and the increase in video piracy. People are looking for competitive alternatives and I think the cable industry is eventually going to have to respond.
Denise: And how do you think they will?
Daniel: So, one effort that it’s going through Congress right now is à la cart pricing. The notion that rather than buying all of your cable channels together. You pick and choose only the ones you want to watch, and pay only for those. It’s not clear to me how the economics of that will work out, but I think more likely you going to see an over-the-top Internet-based cable system going forward. Intel pioneered the technology a couple years ago but couldn’t get the contents right in order to get it to work. They sold the technology to Verizon and the rumors that Apple was experimenting with this technology as well. If so, it means that you might have a competitor to your traditional cable company, right, somebody who can send the exact same thing over the Internet in reach nationwide. If so, this would put a price pressure on the traditional cable alternatives
Denise: So, let’s go back to our earlier discussion of net neutrality and figure out how that plays in, if we are going to have a true over-the-top competitor to cable and satellite, how’s that going to work do you think on the net neutrality side?
Daniel: Right, so this is where the rubber hits the road with regard to net neutrality where the real concern is what we call vertical integration. We’re worried that Comcast controls the broadband pipe to your house, they might do something that prevents you from getting online video if it mean that it’s going to damage their cable division rights. So, leveraging their power over broadband in order to prop up a slowly dying cable market. And that’s sort of thing that antitrust law is very familiar with and knows exactly how to handle it. What they say is first step is to look for whether the company of market power, right, whether the consumer has a competitive alternative because if Comcast, for example, just using them for an example, right. Is engaging in nefarious behaviors, but consumers can switch to Verizon, or AT&T, or Cox or something like that, right for their Internet service, then there’s no problem because the market can punish bad behavior. If not, then you go to the next level and say, well if what’s going on here is harmful to consumers or not. If so, then you end up with a sanction. We had an example of that in the FCC a few years ago in a company called Madison River. Which was a local telephone company that was beginning to provide DSL service, but was blocking Vonage, the over-the-top Internet-based VoIP provider. And the idea was they didn’t want Madison River customers to turn off their traditional phone service and use Vonage instead and the FCC sanctioned that behavior. And I think rightfully so, because that’s an example where exposting enforcement rendering harm to competition.
Denise: Got it, well, we’ve come full circle and think we’ve covered a lot of ground on the show and we will go ahead and leave it at that. I’m so excited that we’ve had the opportunity to chat with such great people today, Daniel Lyons from Boston College Law School. Anything going on at the law school or in your own scholarship that you want to let us know about before we sign off?
Daniel: So I just released a new paper on, that teases out some of the details on these alternative wireless plans. It’s called “Innovations In Mobile Broadband Pricing”, it’s released by the Mercator Center at George Mason University. It gets into a little bit more about what are the alternatives to the all-you-can-eat Internet model and whether it’s a good or bad idea to allow companies to experiment. So, thanks for the opportunity to plug it.
Denise: Sure, we will check it out, I think I have already have it in the show notes which I mentioned before. Marty, great to see you again.
Marty: Great seeing you Denise. Great seeing you Evan. Nice meeting you Daniel.
Denise: How are all your pets doing?
Marty: All my pets?
Denise: Yes, how’s your doggie?
Marty: Banner says hello.
Denise: Good, good. We miss Banner. All right, wonderful chatting with you. Other than simply keeping the world apprised on all the latest and greatest developments in trademark law; anything going on with you that you’d like us to know about?
Marty: No, just subscribe to @trademarkblog and I will keep all you need to know.
Denise: Great, thanks so much. Evan, great chatting with you. Thank you for instilling some moonshine into our show today as well the sunshine that you always bring to the show. How are things in Chicago these days?
Evan: Things are great. It’s looking up. It’s springtime here. We enjoyed spring break this week so we actually made it up to the Twin Cities. And enjoyed the great commercial thing that the US producers called the Mall of America, so you know it’s sort of vacation mode here, but working hard in any event. Just I think I mentioned already, I have a few speaking engagements lined up over the summer. Going to be talking about the ethics of trolling, intellectual property trolling, and then all the way over to talking about BITCOINS as well. So I’m looking forward to the warmer weather and some talks I’m going to be giving, I’ll keep people up on those things, they are going to be here in the Chicago area. So it some interesting learning and dropping of knowledge, it’s going to be fun.
Marty: I have a quick question for Evan. Evan, Chicago Cubs or White Sox fan?
Evan: Well, I’m a Cubs fan. I don’t believe in shedding blood over any of it, I wasn’t born in Chicago, but I married into a family where it’s, we’re a Cubs family here. Did I answer correctly from your perspective?
Marty: Well, I wanted your comment on what George Wills wrote this week, that he feels that the long time failure of the Cubs is due to the fact that Cubs fans are too forgiving, so that implied something of an economic incentive/disincentive model. That you guys need to be more critical of them. Do you feel that’s a fair criticism or is that blaming the victim?
Evan: Well, I tell you what, Cubs fans can certainly be unforgiving, but not necessarily in relation to the team itself. If you go back to, I think it was 2003, if you will remember it was toward the end of the series where a fan interfered with catching a pop fly in the outfield and that poor guy essentially got run out of town because this essentially meant the loss of the game. His name was Bartman. If you do a Wikipedia moment for that, so there certainly is the capacity unforgiving in the Cubs fan’s heart. So maybe this could be this hundred, century long drought could have something to do with where that unforgivingness is being directed. So, I will have to evaluate George Wills’ commentary a little bit there.
Marty: Okay, very good.
Denise: Oh my gosh, so I’ve been winding down the show and we’re talking baseball now. And I realize now we’ve had this lengthy discussion about net neutrality without even mentioning the fact that the European Parliament has just voted in favor of a very strong net neutrality law. So, before we let Daniel go, I just wanted to see Daniel, you were talking before how many countries, there’s much more open market competition approach towards what sort of Internet services are offered and how they’re priced and what’s included. The EU seems to be going in the other direction and I wanted to get your take real quick before we sign off.
Daniel: Yes, this is one part of a larger experiment with the EU to try to mold a series of regional cell phone markets and wire based markets into one large common market, right. This ability that the parliament has voted on, my understanding is that it does not become law until the Council of the European Union votes upon it. But that is probably likely to happen. It will set a nice natural experiment, I think. If the US continues on a more competitive track to see which one ones be better for consumers. We had a similar experiment in the wireless space about 10 years ago, the EU mandated that each wireless provider adopt GSM technology, 3GGSM technology , where as in the United States we allowed companies to experiment and some went with GSM and some went with the alternative, the CDMA technology. From that competition between AT&T and Verizon, we got ultimately the 4G LTE networks and so now we are light years ahead of Europe. In that respect, because everybody in Europe is still stuck on what the regulatory apparatus demanded of the previous generation. So we will see how it works out, but I’m happy that we get this sort of a natural experiment to see which one will be the better policy for consumers.
Denise: All right. So on that note, we will go ahead and wrap up this episode of This Week in Law. Thank you so much for all your input, gentlemen. Folks, if you are watching us on Friday that means you tuned in at 11 o’clock Pacific time. 1800 UTC. That’s when we record the show live. If you’re watching it some other time that probably means you’ve picked this up off of iTunes or YouTube, or from our site twit.tv/twil. Hopefully our packets are coming through loud and clear and strong and reliably. And we’ll continue to do so. If you would like to get in touch with us between the shows, please do so. We get wonderful comments, feedback, suggestions from the audience. And the way you can do that is email us. I am Denise@twit.tv . Evan is Evan@twit.tv, Send us stuff on Twitter, Evans is Internetcases there and I’m dhowell. We have a Facebook page and Google plus page and a community over on Google plus. So, pick your poison and get in touch with us definitely let us know your responses to what we have discussed and what we should be talking about next and who we should be talking about it with. And with that we will let you go. Have a great weekend and we will see you next week on This Week in Law!