TechLaw

Fair Use on Display With Barnes & Noble's Nook E-Reader?

The jkOntheRun mobile device blog has an early story out on Barnes & Noble's new e-reader, the Nook. From their summary:

E-books can be loaned to other Nook owners, or those with any version of eReader software installed on a handset or computer. The loan period is 14 days, after which the e-book disappears on the lendee’s device. The original owner cannot access the e-book during the loan period.

Publishers can restrict their books from being loaned.

This is exciting news from the reader's perspective, but I can't help but wonder if this Nook feature will be the subject of copyright infringement litigation in the near future. "Digital lending" is considered an oxymoron among most copyright owners, though thankfully this is the kind of problem that $$$ often solves (and may have already solved in this case). Giving copyright owners the option of turning off the lending feature is similar to the way Amazon parried objections to the text-to-speech feature with its Kindle 2 e-reader. (BTW there is no text-to-speech option on the Nook.)

Sen. Durbin Proposes $15 Million in Grants for Open Textbook Creators

Last week Sen. Richard Durbin introduced a bill (S. 1714) that would create a $15 million federal grant program for "open textbooks." The bill is a further example of continuing federal government interest in openness, transparency, and using information-sharing technologies to promote social aims.

Sen. Durbin is promoting his bill as a means to drive down the price of college textbooks, but I think it is going to have more far-reaching consequences than that. If it passes.

The bill defines "open textbook" as "a textbook or set of course materials in electronic format designed for use in a college course at an institution of higher education that is licensed under an open license."

New works and updates to existing works would be eligible for grants.

The bill defines "open license" as "an irrevocable intellectual property license that grants the public the right to access, customize, and distribute a copyrighted material."

Any college, and professor or group of professors, any for-profit or non-profit organization may apply to the Secretary of Education for a grant to produce open textbooks. It will be interesting to see how this all plays out in the legal education market, particularly in the areas of cyberlaw and intellectual property law where feelings about openness run strong. A shot of federal grant money might be all it takes to spur the development of new teaching materials from law clinics at Harvard or Berkeley, or stimulate interest from an established, commercial technology law publisher like MIT Press.

Grant-eligible teaching materials must be both "free as in freedom" and "free as in beer." S. 1714 provides that the "full and complete digital content of each open textbook" must be "made available free of charge to, and may be downloaded, redistributed, changed, revised, or otherwise altered by, any member of the general public."

The message to entrepreneurs is this: If you'd like to take the big textbook publishers down, the federal government might be willing to lend a hand. The hard part will be making a buck in the process.

Ten Interesting Things I Read This Week

This post is a collection of links to materials I've been reading this week, really just trying to catch up on old news and re-engage myself in subjects that I spent most of my summer trying to forget while on vacation. I made supplications to the Muse all morning in the hope she would favor me with a catchy title, something that might yield one of those tragically sardonic acronyms like CAN-SPAM or SPY Act, but no, nothing, and now it's time to get back to work and all I have is Ten Interesting Things I Read This Week (TITIRTW):

1. Cleveland Plain Dealer: Idea for protecting newspapers draws national spotlight, bloggers' ire

2. Media & Communications Policy: More on Newspapers and Aggregators

At this point management at most of the leading newspapers have let go of the notion that "parasitic aggregators" are a significant source of their business problems. Yet here is a respected attorney (and counsel to the Cleveland Plain Dealer) making an argument that parasitic aggregators who are free-riding on newspaper content should be stopped. Stopped by reviving the common law doctrine of "hot news" misappropriation. He believes that the Copyright Act should be amended so that it no longer preempts state-law misappropriation claims. The attorney writes: "If the legal principles that we advocate in this analysis were the law, the newspaper publisher would have a legal right to enjoin temporarily or otherwise impede the business of an aggregator that commercially exploits the publisher's news reports in direct competition with the publisher." I don't want to "Go Pundit" here, but this is a solution to a problem that just does not exist.

3. Citizen Media Law Blog: Southeastern Conference Sacks Social Media, Then Recovers

A nice account of the Southeastern Conference's attempt to protect the interests of its television broadcast partners by prohibiting fans from blogging, twittering et cetera during football games that reminded me we are still very much at the beginning of the user-generated media era. The article summarizes the state of the law on the "hot news" doctrine, making a nice counterpoint to the "save the newspapers" discussions above. 

4. U.S. Department of Homeland Security: Secretary Napolitano Announces New Directives on Border Searches of Electronic Media

Modest privacy-enhancing protections announced here, though DHS is not giving back an ounce of their authority to search anyone, anything, any time, at the border. Which still includes laptops: "In the course of a border search, with or without individualized suspicion, an Officer may examine electronic devices and may review and analyze the information encountered at the border."

The American Civil Liberties Union filed a lawsuit this week seeking records relating to searches of electronic devices at the border.

5. The Volokh Conspiracy: How the Ninth Circuit Tried To End Plain View for Computer Searches Without Ending Plain View for Computer Searches

Prof. Orin Kerr ruefully labels the en banc Ninth Circuit's decision in United States v. Comprehensive Drug Testing Inc. as Miranda for computer searches. He writes: "I think the best way to understand today's remarkable Ninth Circuit Fourth Amendment decision in United States v. Comprehensive Drug Testing is that the Ninth Circuit did its best to end the plain view exception for computer searches without formally ending plain view for computer searches. Chief Judge Kozinski's opinion created an elaborate statute-like new regime to make sure the government acts like there is no plain view exception. The decision is a workaround that effectively ends plain view for computer searches by making sure the government will never collect electronic evidence in plain view in the first place."

Sounds a little bitter to me. Judge Kozinski's opinion is a sensational read. And if it really is like Miranda, read it, because it's going to be around for a long time.

6 & 7. Gregg Easterbrook (ESPN): Tuesday Morning Quarterback's AFC preview and TMQ travels back in time to August 2009

A personal favorite, a guilty pleasure, one of the best writers on the Web, reminds me of Tom Wolfe way back when. More than football in here too: smart ruminations on Twitter, the British Humanist Association, and deadly objects from space.

8. Consumer Law & Policy Blog: Official Word from US Courts -- Feel Free to Use RECAP With Our Blessing

The implication here is that the AO's office would naturally have disapproved of RECAP, a Firefox addon that uploads PACER documents to a free repository. But surprise surprise it appears they don't mind at all. Am I the only one who believes the judiciary is the most -- not the least -- open branch of the federal government?

9. Spam Notes: Electronic Communications, Privacy, Data Protection, and More: Gordon v. Virtumundo: 9th Cir Smacks Down Anti-Spammers in Trifecta Defense Win

Ah, August 6, 10 a.m. PST. I was fly-fishing a gentlemanly stretch of the Gallatin River in Yellowstone National Park. Wretched souls like Venkat were slogging through Gordon v. Virtumundo's discussion of CAN-SPAM preemption. He writes: "As far as opinions go, this is as good as it gets." I couldn't agree more. About the fishing, of course.

10. Techdirt: Interview With William Patry: Understanding How The Copyright Debate Got Twisted

Prof. William Patry is coming out with a new book, Moral Panics and the Copyright Wars. Here, a very interesting discussion with Techdirt's Mike Masnick draws out Patry's views on fair use, the file-sharing wars, and copyright politics.

Supreme Court Declines to Review IMS Health, Cable News Network Cases

The Supreme Court, on its final day of the term, declined to review a pair of high-profile cases of interest to cyberlaw attorneys -- one involving the interplay between commercial speech rights and a privacy-protective state law, the other involving copyright infringement by a cable provider's digital recording service.

The first case, Cable News Network Inc. v. CSC Holdings Inc., No 08-448 (link to lower court opinion), involved a copyright infringement challenge by a large group of television content providers against cable television service Cablevision. The Second Circuit, in proceedings below, held that Cablevision's proposed remote video recording system would not directly infringe the plaintiffs' exclusive rights in copyrighted television programming. First, the court held that each buffer copy made as data flowed through the system was transitory—stored in the DVR system for 1.2 seconds, at most—and so was not directly infringing. Second, the court held that the copies created by the Cablevision DVR service were also not directly infringing, because they were created at the direction of subscribers not Cablevision itself, which merely provided the instrumentality for making the copies.

The U.S. Solicitor General filed a brief May 29 urging the court to decline review of the case.

The second case, IMS Health Inc v. Ayotte, No. 08-1202 (link to lower court opinion), involved a First Amendment challenge to a New Hampshire law banning the sale of prescription drug information that identifies doctors' prescribing patterns. The information is useful to brand-name prescription drug marketers who want to steer doctors away from lower-cost, generic drugs. The First Circuit upheld the law. The court remarked that the New Hampshire state law regulates data transfers whose societal benefits “pale in comparison to the negative externalities produced.”

Even if the regulation does constrain protected speech, the court said, it does not violate the Constitution because it serves a substantial state interest in containing health care costs and is no more restrictive than necessary to accomplish its goals. “[W]e are not persuaded that the regulated data transfers embody restrictions on protected speech,” First Circuit Judge Bruce Selya wrote. “In our view the portions of the law at issue here regulate conduct, not speech,” he added.

The significance of the Supreme Court's denial of certiorari in any particular case is difficult to assess, well above my pay grade. Both of these cert petitions were brought by influential, well-financed businesses who predicted that dire consequences would ensue if the high court let stand the lower court's ruling. If the television content providers who brought suit in Cable News Network Inc. v. CSC Holdings Inc. really do feel they can't live with the Second Circuit's interpretation of the Copyright Act, they can get relief on Capitol Hill, and that may indeed occur.

The situation is slightly different with IMS Health Inc v. Ayotte, because that ruling has a constitutional basis. Other states may, upon seeing New Hampshire's success in turning back the drug marketers' First Amendment objections, be encouraged to enact similar laws. Drug marketers might be able to persuade Congress to preempt state laws like the one at issue in IMS Health v. Ayotte. Short of this, however, the only place for drug marketers to get relief on the First Amendment question is in the federal courts, perhaps the Supreme Court, at some later date.

Cash4Gold, Money4Gold, Tomato, Tom-ah-to

Pity poor Jeff Aronson, who built his company, Cash4Gold, into a highly successful venture -- only to see his fortune raided by a competing operator with the same business idea, using the same marketing methods, and very similar trade names. Names like Money4Gold and Dollars4Gold. Aronson's competitor wasn't very scrupulous in his respect for Aronson's trademark. The competitor used banner ads and logos similar to Aronson's on Web sites and in Google paid search advertising, all of which triggered clicks to the competitor's Web site.

Aronson's bid for a preliminary injunction against Money4Gold/Dollars4Gold started off strong. Whereas I probably couldn't have resisted commenting that Cash4Gold built its business by skillfully exploiting human misfortune, the trial court remarked that Cash4Gold's success "is the product of good timing, hard work, and effective advertising." Better yet, the court found that the defendant, Money4Gold, advertised with marks both identical and similar to Cash4Gold. The court further remarked that there was evidence in the record to support a finding that Money4Gold intended to cause consumer confusion.

But Aronson's case foundered on his choice of name for his business: Cash4Gold, a descriptive word mark that is not entitled to protection under Section 43(a) of the Lanham Act unless it has secondary meaning. ("Secondary meaning" means that the mark in question is so strongly associated with the mark's owner in the mind of the public that it is no longer a generic, descriptive term.) A case for secondary meaning is typically created by evidence of advertising campaigns and the extent to which these advertising campaigns are successful at creating link between the mark and the services provided by the mark owner. In this case, despite evidence that Cash4Gold had spent "tens of millions" of dollars in advertising (including TV spots featuring the late Ed McMahon, radio spots by Howard Stern, and sponsorship of a NASCAR driver), Cash4Gold's evidence failed to demonstrate secondary meaning existed at the time the defendant began encroaching on the Cash4Gold mark, sometime in September 2008. Cash4Gold's claim to secondary meaning was also undermined by Aronson's candid admission that the phrase has been around for a long time:

[T]there simply was not enough evidence for the Court to find as a factual matter that Plaintiff’s mark satisfied the Conagra factors and thereby obtained that quantum of recognition known as secondary meaning before September of 2008.

Moreover, Plaintiff’s CEO Jeff Aronson testified that the phrase "cash for gold” has been used “since the days of mining.” He said this while being questioned about the fact that Plaintiff does not presently hold a registration in the Patent and Trademark Office for its mark “Cash4Gold,” while another company, Napala Gold, does own one. When exactly “the days of mining” were is unclear, but his manner indicated that it was a long time in the past. While said only in passing, the fact that Plaintiff’s biggest cheerleader believes that the phrase has been used presumably since the California Gold Rush era seriously undermines its claim to the distinctiveness and exclusiveness of its mark “Cash4Gold” for a precious metal refining business.

Although the court denied Cash4Gold's request for a preliminary injunction, it left the door open for reconsideration if Cash4Gold could put together a better case for secondary meaning. Cash4Gold didn't offer much evidence regarding secondary meaning as of September 2008, and the court here wasn't willing to assume that the mark was as well-known then as it is now.

Cash4Gold also lost its copyright infringement claim against Money4Gold, a claim that was based on Money4Gold's copying of a small portion of the Cash4Gold Web site. The court remarked that, despite the evident copying that occurred here, the Money4Gold and Dollars4Gold Web sites "have a strikingly different look to them from the Plaintiff's site and would not strike a lay observer as having appropriated the protected elements of Plaintiff's website."

Cash4Gold submitted to the court 43 pages of material printed from its Web site. The copycat Web sites created by the defendant were just 1-3 pages in length. On this disparity of size alone, the court said, the defendant's Web sites cannot be deemed to be substantially similar to -- and thereby infringing -- the Cash4Gold Web site.

This case is further evidence that copyright law is a poor means to prevent free-riding of the sort that occurred here. It's also further evidence of the "generous" of copyright law: money-making ideas like Aronson's are free for the taking; only their expression is protected, and loosely so in the case of marketing content.

The case is Green Bullion Financial Services v. Money4Gold Holdings Inc., No. 09-60027 (S.D. Fla., June 22, 2009).

ALI Software Contracts Principles Drafters on Non-Excludable "No Material Hidden Defects" Implied Warranty

Over the the Concurring Opinions blog, the two reporters of the American Law Institute's recently approved Principles of the Law of Software Contracts explain their work and defend the ALI's decision to create (at Section 3.05(b)) a non-excludable implied warranty that the software “contains no material hidden defects of which the transferor was aware at the time of the transfer.” According to the reporters, Robert A. Hillman, a professor at the Cornell Law School, and Maureen A. O'Rourke, Associate Dean at the Boston University School of Law, some software providers had complained about Section 3.05(b), arguing that it was new law, would promote litigation and, being a tort law concept, it had no place in a summary of contract law.

Profs. Hillman and O'Rourke recently published a draft paper at SSRN, Rethinking Consideration in the Electronic Age, discussing the application of contract law to free and open source licenses.

Justice Sotomayor's Potential Cyberlaw Influence? Not Much

It was pleasant to note the other day that Judge Sonia Sotomayor, President Obama's choice for Associate Supreme Court Justice, has written a few opinions relating to Internet law during her time as judge in the lower federal courts. A first, apparently, and a sign of the centrality of the Internet in our business and personal affairs. From now on, the high court nominee who doesn't have a few cyberlaw decisions on his or her resume will be the remarkable case.

But does a Justice Sotomayor mean anything for the future direction of the laws that regulate online activity? No, not really. Not in the near future.

Consider this:

The Supreme Court has never reviewed a case involving the Computer Fraud and Abuse Act.

The Supreme Court has never reviewed a case involving the Electronic Communications Privacy Act.

The Supreme Court has never reviewed a case involving Section 230 of the Communications Decency Act (which gives interactive computer services immunity from most claims arising from the publication of third-party content), though it did consider, and strike down, the prohibitions against indecent online speech contained in another part of the CDA in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).

The Supreme Court has never reviewed a case involving the CAN-SPAM Act or the Digital Millennium Copyright Act.

The Supreme Court has never reviewed a case involving electronic contracting, jurisdiction arising from online activities, cybersquatting or any other domain name-related dispute.

Aside from Doe v. Chao, a case involving standing to sue the federal government under the Privacy Act, the Supreme Court has never taken a case involving online privacy or security (GLB, COPPA, FTC Act, you name it). If you want to count Bartnicki v. Vopper, go ahead, though I don't think that obscure decision in any way undermines the point I am trying to make here.

So that covers that vast majority of what I consider to fall under the general heading of cyberlaw. None of it is even on the Supreme Court's radar. And I don't see that situation changing anytime soon. The Web is a welter of contracts (a state law issue), and all of the afore-mentioned statutes need many more years of intermediate appellate scrutiny before they'll make good candidates for Supreme Court review. Sure, there are plenty of prosecutorial and judicial missteps to feed our blogs. But, as the Supreme Court often reminds us (see Rule 10), the Supreme Court is not in the business of correcting erroneous applications of settled law.

What's left? Copyright, patent, and First Amendment law. The last (and only) time the high court decided a digital copyright case was Metro-Goldwyn-Mayer Studios Inc. v. Grokster, 545 U.S. 913 (2005), a case in which Justice Souter (whom Judge Sotomayor will replace) wrote for a unanimous court that Grokster, a distributor of peer-to-peer file-sharing software, was a secondary infringer of the movie studios' copyrights. Not only did Grokster lose the case, but it inspired the high court to create a new theory of secondary liability -- "inducing" copyright infringement -- along the way. Given the apparently entrenched views already on the court, Judge Sotomayor's ascent to the Supreme Court offers little hope of benefiting copyright fair use advocates anytime soon, if at all.

First Amendment issues have traditionally been a leading source of Supreme Court activity, and it is not too far-fetched to imagine high court review of a case involving a federal government (FCC?) attempt to impose broadcast-style regulation on Internet transmissions. Here alone, I think, we have an area where Judge Sotomayor could exert some influence on cyberlaw issues. Without question, the Internet would be a far different -- and worse -- place if Reno v. American Civil Liberties Union had come out the other way. On First Amendment issues, Judge Sotomayor appears to have a rather unremarkable though liberal-leaning view of the First Amendment. About the same as the departing Justice Souter. No gain or loss for free speech proponents.

That leaves patents. In re Bilski, No. 08-964 (certiorari petition filed Jan. 28, 2009), is an important case in which the Federal Circuit curtailed the patentability of software-implemented business methods. According to SCOTUSBlog, there is a good chance the Supreme Court will grant review of the Bilski decision. Bilski was up for discussion yesterday at the Supreme Court's private cert-consideration conference, so we could know as early as Monday if Judge Sotomayor will have that one facing her in the fall. I have no idea what Judge Sotomayor's views are on the patentability of software-implemented business method patents, and I don't think anyone else does either. The Inventive Step blog unearthed a couple district court decisions. Not much there to go on.

Feel free to e-mail me (as usual) all the cases I've missed!

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Provocative Ruling in Facebook v. Power Ventures

All your friends in just one place. Except for your Facebook friends.

And maybe that is a good thing because, according to the court's ruling in Facebook Inc. v. Power Ventures Inc., No. 08-5780 (N.D. Cal. May 11, 2009), Facebook users who give Power.com their username and password information are infringing Facebook's copyright in its profile pages.

There are a few other gems in this opinion as well.

Takeaways for online business attorneys: When it comes to protecting Web site content, the Copyright Act is a powerful ally. Also, terms of use statements can effectively frame what is and is not an authorized use of your site content, even against parties that did not read those terms.

Takeaways for Web users: Like they say on the playground, you can pick your friends, you can pick your data. But you can't pick your friend's data.

Power Ventures, the defendant, operates Power.com, a Web site that permits users to aggregate data about themselves that is spread out across various social media Web sites. Power.com and Facebook tried unsuccessfully to work a deal so it could access Facebook’s Web site. Lacking official permission to access Facebook's Web site, Power.com turned to Facebook users, obtaining from them their username and password for the limited prupose of gaining access to their profile data. Power.com, armed with username/password information necessary to access Facebook users' accounts, then employed a computer program to pull profile data out of the Facebook Web site.

Facebook sued for violations of the CAN-SPAM Act, the Copyright Act, the Digital Millennium Copyright Act, the Computer Fraud and Abuse Act and related state claims. The court's ruling addressed the copyright-related claims and the trademark claim.

The court repeatedly referred to Power.com's conduct as "scraping," an ominous sign. Cf. eBay v. Bidder's Edge and Verio v. Register.com.

The court found that Power.com's scraper made an actionable "cache" copy of the user's profile page each time it accessed a Facebook profile page. It followed Ticketmaster LLC v. RMG Techs. Inc., 507 F. Supp.2d 1096 (C.D. Cal. 2007)("copies of webpages stored automatically in a computer's cache or random access memory (RAM) upon a viewing of the webpage fall within the Copyright Act's definition") on this point.

Next the court held that these cache copies were unauthorized. Support for this conclusion was drawn from the Facebook terms of use, which prohibits downloading, scraping, or distributing any part of the Facebook Web site. True, the user may download his or her own content; however, the terms of use state that the user may not use automated means to do so.

OK, so far the court has found that Power.com made unauthorized copies of the Facebook Web site. What about the fact that Facebook does not own the copyright in its users' profile data? Facebook surmounted this hurdle by arguing that the content of the Facebook page that surrounded the user's data is copyrightable and is owned by Facebook. According to Facebook, the Power.com scraper operated in a manner that required it to copy the entire Web page in order to extract the user's profile data.

Defendants correctly assert that Facebook does not have a copyright on user content, which ultimately is the information that Defendants’ software seeks to extract. However, if Defendants first have to make a copy of a user’s entire Facebook profile page in order to collect that user content, such action may violate Facebook’s proprietary rights. Accordingly, the motion to dismiss the claim for direct copyright infringement will be denied.

Note that the court is conditioning its ruling on the assertion that the Power Ventures scraper necessarily copied the entire Web page before it processed the page and extracted the profile data. That comports with my (limited) understanding of how a Web scraper works. But is it true? If it were true, couldn't an argument be made that this is a fair use of the page? I'll leave that for better lawyers. In any event, the issue wasn't raised in the court's opinion or by counsel as far as I could tell. The court wound up holding that Facebook had alleged a valid claim for direct copyright infringement against Power.com.

Finally, to return to the point where I started this post, the court also held that the complaint stated a valid claim for indirect copyright infringement as well. The court reasoned like this:

[T]he utilization of Power.com by Facebook users exceeds their access rights pursuant to the Terms of Use. ... Moreover, when a Facebook user directs Power.com to access the Facebook website, an unauthorized copy of the user's profile page is created. ... The creation of that unauthorized copy through the use of Defendants' software may constitute copyright infringement.

The court doesn't come out and say it, but I will: Power.com can only be indirectly infringing if Facebook users are directly infringing. Users aren't being sued here, so it's merely an academic point. Interesting nonetheless.

Along the way, the court declined to dismiss the DMCA and trademark infringement claims against Power.com as well.

It will also be interesting to see how the court rules on Facebook's Computer Fraud and Abuse Act claims (based on violations of the Facebook terms of use), assuming the case gets that far.

Update: Venkat @VBalasubramani was on this one over a week ago making pretty much the same points.

Who Can You Believe on Intellectual Property Rights Enforcement?

Somebody will have to explain to me how a country like Canada can be listed on the U.S. Trade Representative's Priority Watch List for worst intellectual property regimes and yet rank sixth best in the world for intellectual property protection, according to a study written by Taylor Wessing, a lawfirm specializing in enforcing intellectual property rights.

One of these studies must be buncombe, right?

The United States, ranked third, was dinged by Taylor Wessing for being a relatively expensive jurisdiction in which to enforce intellectual property rights.

Just to satisfy my curiosity I wrote down which countries appearing in Taylor Wessing's rankings were singled out for criticism by the U.S. Trade Representative. Looks like the USTR put Canada in with some pretty rough company. And it spared for scorn many countries that, in Taylor Wessing's estimation, are more hostile than Canada to intellectual property rights enforcement: Ireland, New Zealand, France, Singapore, Japan, Spain, South Africa, and South Korea.

Jurisdiction	Taylor Wessing Rank	USTR 301 Designation
UK	1	--
Germany	2	--
USA	3	--
Australia	4	--
Netherlands	5	--
Canada	6	Priority Watch
Ireland	7	--
New Zealand	8	--
France	9	--
Singapore	10	--
Japan	11	--
Israel	12	Priority Watch
Spain	13	--
South Africa	14	--
South Korea	15	--
Mexico	16	Watch
UAE	17	--
Italy	18	Watch
Turkey	19	Watch
Poland	20	Watch
Russia	21	Priority Watch
Brazil	22	Watch
India	23	Priority Watch
China	24	Priority Watch

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U.K. Lawmakers Weigh Need for Greater ISP Liability

An ad hoc group of Parliament ministers, the All Party Parliamentary Group on Communications (apComms), has opened a public inquiry into a handful of pressing Internet policy issues. Among them: net neutrality, privacy issues relating to behavioral advertising and deep packet inspection, and child abuse.

The main objective of the inquiry, it seems to me, is to decide whether Internet service providers should be given a measure of legal responsibility for rooting out bad behavior on the Internet. From the inquiry announcement:

Existing European legislation provides ISPs with some key immunities for "mere conduit" along with protections for "hosting" and "caching". Almost a decade after they were decided upon, are these immunities still appropriate? Should they be recast to reflect the way in which modern networks operate?

The apComms group is seeking public comment on five specific questions:

1. Can we distinguish circumstances when ISPs should be forced to act to deal with some type of bad traffic? When should we insist that ISPs should not be forced into dealing with a problem, and that the solution must be found elsewhere?

2. Should the Government be intervening over behavioural advertising services, either to encourage or discourage their deployment; or is this entirely a matter for individual users, ISPs and websites?

3. Is there a need for new initiatives to deal with online privacy, and if so, what should be done?

4. Is the current global approach to dealing with child sexual abuse images working effectively? If not, then how should it be improved?

5. Who should be paying for the transmission of Internet traffic? Would it be appropriate to enshrine any of the various notions of Network Neutrality in statute?

Comments are due May 22. Public hearings are scheduled for June 15-17, 2009, in Westminster. The apComms group is chaired by MPs John Robertson Derek Wyatt.