Internet providers can be forced to block access by customers to websites that infringe copyright, but any injunctions must contain specific blocking measures and balance opposing fundamental rights, said European Court of Justice (ECJ) Advocate General (AG) Pedro Cruz Villalón in an opinion Tuesday (bit.ly/IfGzP3 not available in English). AG opinions aren’t binding, but the EU high court generally follows them. The case involves a dispute between Austrian Internet provider UPC Telekabel Wien and Constantin Film Verleih and Wega Filmproduktionsgesellschaft, which sought an injunction barring UPC from letting its customers access kinoX.to to download or stream movies without authorization, a court news release said. UPC has no legal relationship with the website operators and didn’t give them Internet access or storage space, it said. However, the Austrian Supreme Court said it was nearly certain that individual UPC customers availed themselves of the illegal site, the ECJ said. The Austrian court asked the EU high court to determine whether an ISP that merely gives access to users of an illegal website can be deemed an intermediary for purposes of copyright injunctions. The AG said ISPs of users of websites that infringe copyright can be regarded as intermediaries whose services are used by third parties -- the website operators -- to breach copyright rules, and therefore are subject to injunctions. But he said it’s incompatible with balancing the parties’ fundamental rights to prohibit ISPs generally, and without the order of specific measures, from allowing customers to access a particular infringing website. Specific blocking measures imposed on ISPs relating to a particular website aren’t in principle disproportionate only because they entail considerable cost to the provider but because they can be easily circumvented without any special technical knowledge, the AG said. It’s up to national courts on a case-by-case basis to strike a fair balance among the various rights, he said. Content owners must, as far as possible, file their infringement claims directly against the operators of the illegal websites or their ISPs, he said. The opinion is expected to heat up the ongoing debate about online piracy, wrote independent telecom consultant Innocenzo Genna on his radiobruxelleslibera blog (http://bit.ly/17QfH1E). The copyright lobby will likely brand the AG position a victory but the reality is different, he said. Web-blocking is widely used in the EU to fight piracy, so the AG is imposing restrictions on the current practice rather than giving the copyright industry new repressive instruments, he said. The conditions for blocking envisaged by the AG are quite strict, and, if approved by the ECJ, will force some national governments to rethink their tolerance of Web-blocking, he said. For example, Genna said, the opinion stressed that blocking is subject to law and should be pursued in and reviewed by courts, so countries that want to delegate blocking to an administrative agency may have to review their plans. Moreover, because blocking involves important rights such as free speech, privacy and freedom of business, some national judges may decide in specific circumstances that blocking is excessive and inadequate. “I believe that DPI (deep packet inspection) will not be tolerated by national courts,” Genna wrote. While libertarians and ISPs must analyze the opinion’s implications, it isn’t very promising for the copyright industry because resort to blocking will be harder than in the past, he said.
Woodcock Washburn will merge with Baker & Hostetler, the firms said in a statement Friday. The merger will double Baker & Hostetler’s current intellectual property practice to 140 lawyers and help it “provide clients with significant IP breadth and depth,” the announcement said.
Sinclair completed the purchase of 18 Barrington Broadcasting TV stations for $370 million, in a deal where the buyer is providing sales services to six more outlets, said the acquirer in a news release Monday (http://bit.ly/1biMX4A). It said that “due to FCC ownership conflict rules” and as planned, Sinclair sold WYST (Fox) Syracuse, N.Y., and assigned a local marketing agreement and purchase option for WNYS (MyNetworkTV) Syracuse to Bristlecone Broadcasting. There were other transactions mentioned in the news release.
The FCC released its “Small Entity Compliance Guide” on assessment and collection of regulatory fees for FY 2013. The guide lists where and when regulatory fees must be paid, and how much is owed (http://fcc.us/17O6Qxt).
A rumored Comcast/Time Warner Cable transaction or “partial combo” might be able to survive FCC scrutiny (CD Nov 25 p16), said Wells Fargo analyst Marci Ryvicker in an email to investors Monday. Looking at a scenario where part of Time Warner Cable would go to Comcast and part to Charter, Wells Fargo is “not that concerned” that possible antitrust or public interest objections would prevent the combination from happening, she said. However, it’s not certain that Comcast would be willing to bear “another year of regulatory scrutiny” similar to what it endured during its buy of control in NBCUniversal, she said. Ultimately, Comcast “would not shy away from a deal with significant long-term benefits,” she said. Such a deal could also lead to future big mergers in DBS, she said. “Any distribution tie-up bodes well for an eventual DISH-DTV merger.” A Comcast/Time Warner Cable doesn’t include “programming cost synergies” as big as expected, and so might not lead to other media deals, she said. “Visceral negative reaction” to any Comcast/Time Warner Cable deal could be overcome by regulators approving it “with extensive conditions [that] could advance the Administration’s policy goals for the pay TV and broadband markets,” said Guggenheim Partners analyst Paul Gallant in an email to investors. “We are inclined to believe cooler heads would prevail and that regulators would view merger conditions as a pragmatic way to advance outcomes that the Administration probably cares about.” Gallant also considered a scenario where Time Warner Cable would be divided between Comcast and Charter, which he said would improve the chances of winning regulatory approval. “Our instinct is that the regulatory concerns would be lower if Comcast only proposed buying half of TWC simply because, from the FCC/DOJ’s perspective, the risk-reward balance probably improves,” Gallant said. Possible conditions imposed on such a deal could be related to promoting competition in over-the-top video, net neutrality, channel bundling or the FCC broadcast-TV spectrum auction, he wrote. “Comcast’s NBC and Telemundo stations are located in some of the largest cities, which is where the FCC is hoping to persuade station owners to sell in the broadcast spectrum auction."
Cablevision no longer faces rate regulation in 23 New York franchise areas, with fewer than 100,000 households total, said an FCC Media Bureau order released Monday. It granted the cable operator’s unopposed request for a finding of effective video competition in East Fishkill, Union Vale, Unionville and other areas (http://bit.ly/17O6HKf). Cablevision cited competition from both major U.S. DBS companies.
Trans-Pacific Partnership trade officials concluded negotiations in Salt Lake City Sunday, making “significant progress” in areas such as intellectual property protection, market access, state-owned enterprises, government procurement and technical barriers to trade, said the office of the U.S. Trade Representative in a news release Sunday (http://1.usa.gov/1aTJabe). The talks, which began Nov. 19, paved the way for additional progress at the upcoming TPP ministerial summit in Singapore, said USTR. U.S. trade officials, including USTR chief Michael Froman, have eyed the end of 2013 for conclusion of TPP negotiations. On speculation that Dec. 7-10 will be the dates for the ministerial summit, the USTR didn’t comment.
The Massachusetts Department of Telecommunications and Cable will co-sponsor a daylong conference on the IP transition Dec. 3, a DTC spokeswoman told us Monday. The New England IP Transition Conference (http://1.usa.gov/1b0UxKZ) panels will focus on how the IP transition affects economic development, the existing network infrastructure and consumers, said the spokeswoman. “States are an important partner with the FCC to implement the transition from legacy networks to IP,” she said. “The FCC IP trials could impact federal and state rules, so states need to be involved.” The past two conferences have focused on broadband and wireless services, she said. The DTC has open an IP interconnection proceeding on a commercial agreement between Verizon and Comcast (http://1.usa.gov/1i9xCqL), she said. “We are going to be working around that in our discussions,” said the spokeswoman. Scheduled panelists include Sharon Gillet, Microsoft principal technology strategist; Hank Hultquist, AT&T vice president-federal regulatory affairs; Angie Kronenberg, Comptel general counsel; Paul Vasington, Verizon director-state public policy; Harold Feld, Public Knowledge senior vice president; and Mark Reilly, Comcast senior vice president. The conference is also sponsored by the FCBA, Boston Bar Association and New England Conference of Public Utilities Commissioners.
The House Communications Subcommittee will be asking FCC members about the agency’s recent proposal to allow cellphone use on planes in flight, said subcommittee Chairman Greg Walden, R-Ore., in a statement Friday. He raised concerns about the change when it was announced last week (CD Nov 25 p1). Walden has invited all five commissioners for a December oversight hearing, where he expects “spirited discussion” of the aviation topic, he said.
Mobile devices will play their biggest role yet during Black Friday weekend, said a research report released Monday by the Interactive Advertising Bureau (http://bit.ly/1bi0lWE). It said 90 percent of smartphone-owning parents who plan to shop this weekend said they would use a mobile device for assistance while shopping. Roughly half of those shoppers said they plan to use their mobile device for at least one of these things: checking the availability of an item in a store, tracking sales and researching gift ideas, said the report. “Their dependence upon mobile devices during this high-volume shopping timeframe opens up considerable opportunities for marketers,” said Anna Bager, general manager of IAB’s Mobile Marketing Center of Excellence.