CLPS Weekly Bulletin

All the Communications Law News that's in the NOW.Weekly Bulletin


Andrew Simmons

Communication Law & Policy Society

"Google Music: Does this Mean the Music Industry should start Playing the Blues?"

A new service has burst onto the Internet scene. However, unlike the million of attempts to carve out market share in the various platforms of the Internet everyday, this particular new effort caught serious attention--by bloggers, journalists and users alike. Why? Because it was launched by Google.

The service, popularly dubbed "Google Music," by the press, but described innocuously, and without, seemingly, a dedicated name on Google's official website, as a "new way to discover music" has caused quite a stir for what this service is; a simple way to play a few songs (30 second samples) by an artist integrated in your search results for content by that artist.

According the official Google blog,, their new service has been launched in order to, "find music faster and easier using Google, search for artists, albums, songs or lyrics. We'll [Google] provide links to partner sites where you can preview and purchase songs." Now users can enter into any Google Search field (whether integrated into the browser, a site, or the page itself) a musician, song, or lyric and Google will display relevant musical results for you. To that end Google has partnered with various Music Providers (list the partners?) that allow the user to continue listening to the song, or if you should desire, purchase the MP3.

This is where it gets interesting as anyone even casually studying the evolution of music distribution as pertains to the Internet would note. Starting, perhaps, with the popular file-sharing site Napster and currently manifesting itself in "online radio" the saga of music and its Intellectual Property protection has been tenuous at best on the Internet. At the heart of this tension lie the artists themselves, in epochs past musicians have enjoyed substantial royalties from Album sales and song usages; these are revenue streams that the movement of their content to the online community has changed fundamentally. Where previously songs could be "bundled" into an album, hopefully (and often lucratively) covering the cost of production, the internet has rendered this system obsolete. Now users can purchase only one song--the song they like from an album, unbundled. This has cut profits tremendously for record labels and artists. This is the new reality artists must face and they seem to be of two schools: Either they are for full adoption of music sharing, discovery and innovative distribution methods (for instance sometimes the amount paid for an album is even decided by the user) or they have decided to try and fight the illegal/different means of distribution for their works. The later has caused the growth of music online many starts, stops and start-overs.

While no one maintains that anything Google is doing is close to illegal, Google Music Search does partner with services that have been at the forefront of the fight between the music industry itself and the Internet fueled re-tooling of the music industries economic model of bundling., one of the main partners in Google Music Search's launch, has been embroiled in legal dispute after legal dispute over payment structures for use of music on their site by users, only agreeing to something permanent this summer. And even this most recent agreement,which restricts users usage to U.S. citizens and requires payment for heavy use of the site, some commentators expect will still eventually become undesirable to the music industry as sites like these gain greater market share.

Google, in embracing these new music industries by incorporating them into their new service offering despite their tenuous legal status, has made a statement. As a major player many have interpreted the move as both a heralding and cementing of the permanent shift to online music.

There is one thing the industry knows for sure and that is music consumption is fundamentally different. Free Markets work when consumers highlight a need through their desires and that need is profitably filled by a business. This was and should continue to be, the cornerstone on which the music industry finds its strength, despite its changing monetization landscape. Google has indicated, by launching this new service, that the consumer desire has switched and they are willing to embrace it, however it's not their bottom lines the music revolution has effected. So will the one whose business has been hurt accept change? The answer to that question may well be beyond their grasp.


November 4, 2009.

Amanda Hiffa

Communications Law & Policy Society

"The Ambiguity of Indecency Regulation"

There seems to be universal agreement within society that certain words are considered “bad.”  While certain words are deemed “bad” people still use them, and these “bad words” are in greater common use than ever before.   The increased use of swear words points to a “weakening or loss of intensity of the force and impact of swear words over time.” [1] As the public becomes increasingly jaded to the use of these “bad words,” should regulation over indecency in broadcast serve the interest of the hyper-sensitive minority, or the increasingly progressive majority?

Indecent speech is offered only limited First Amendment protection in the context of broadcast, thus the FCC is permitted to regulate indecent and obscene speech.[2] The power of the FCC to regulate broadcast is limited by the prohibition of censorship.[3] Regulation over indecent speech was first exercised by the FCC in FCC v. Pacifica Foundation, and from this case came the accepted definition of indecent speech as “material that, in context, depicts or describes sexual or excretory activities or organs in terms patently offensive as measured by contemporary community standards for the broadcast medium.”[4]

Given this definition, it is expected that the standard for determining what constitutes indecent speech will change in time in conjunction with changes in societal perceptions.  Advances in technology provide greater access, which inevitably results in an increased likelihood of exposure to indecent material.  Held against the “contemporary community standard” one would think that indecency regulation over time would become less restrictive due to the general increase in societal acceptance of expletive language.  To the contrary, in regard to the regulation of indecent material in broadcast, the FCC has regressed against the grain of societal progression.

The Supreme Court specifically stated in Pacifica that “cases involving the isolated use of a potentially offensive word” were not to be construed as indecent. [5] For almost twenty five years after Pacifica, the FCC only sanctioned repeated use of indecent words.  In 2003, the FCC changed its approach to indecency regulation, prompted by Bono’s use of the f-word in a live broadcast of the Golden Globe Awards.  The new policy now allows the FCC to sanction for isolated instances of fleeting expletives.  With this new indecency policy in place, almost one year later, the FCC refused to punish the ABC network for the unedited broadcast of the film Saving Private Ryan, in which there were repeated expletives that made direct reference to bodily and excretory functions.  The FCC found that there was violation of the indecency regulations because the questionable language was necessary to the artistic value of the film.  The FCC’s wavering stand on indecency regulation has caused great controversy and confusion among broadcasters, and has been challenged as a violation of the First Amendment.  Earlier this year, the Supreme Court held that the FCC’s change in policy was not arbitrary or capricious, thus approving the seemingly unjustified abrupt change in policy that now allows the FCC to subjectively punish broadcasters for airing indecent material.[6]

The enforcement of indecency regulation by the FCC entails a history of unclear and seemingly unjustified decisions made by very few, on behalf of the public.  As a result, there has been a chilling effect on broadcasters, and in practical effect, this sort of over-cautious self-regulation is censorship, which is an absolute violation of the First Amendment.  For fear of sanction, or the denial of license renewal, broadcasters have had to water down their programming.  The failure of the FCC to provide bright line guiding principles as to what does or does not constitute indecent speech has a profound effect on the content chosen by broadcasters, which violates the prohibition of censorship that specifically states, “no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech.” [7] The change in policy effectually permits the FCC to censor broadcast content.

The FCC’s change in policy is also contrary to the proclaimed “contemporary community standards” thus pointing to the subjectivity of the standard. The common understanding is that the use of fleeting expletives is a means of emphasis rather than for the literal sexual or excretory meaning of the word. The public’s jaded perception of “bad words”, and lowered propensity to be offended by the use of such words begs the question as to why regulation has become more restrictive?  Currently the FCC holds immense power over broadcasters.  The freedom that broadcasters should have to choose the content of their programming is stifled by inexplicable and purely subjective indecency regulation by the FCC.

[1] Dave E. Hutchinson, “Fleeting Expletives” Are the Tip of the Iceberg: Fallout from Exposing the Arbitrary Nature of Indecency Regulation, 61 Fed. Comm. L.J. 229, 231 (2009).

[2] See 18 U.S.C. § 1464 (West 2009).

[3] See 47 U.S.C. § 326 (West 2009).

[4] FCC v. Pacifica Found., 438 U.S. 726 (1978).

[5] Id. at 760.

[6] F.C.C. v. Fox Television Stations, 129 S. Ct. 1800 (2009).

[7] 47 U.S.C. § 326


October 20, 2009.

"The New Digital Age and Copyright Law"

Cindy Trinh

-It is no doubt that technology has expanded the number of ways that artists may express their work. The digital age has brought forth new and interesting ways artists can create their works. No change has been more significant than the shift to "digital". No longer is art restricted to just the tangible oil and canvas; the artist is now free to explore various forms of digital instruments, such as film, television, and the Internet. Since the purpose of copyright law in our society is to “promote the progress of science and the useful arts” (United States Constitution, Article I, Section 8, Clause 8), what better way to achieve the Constitution's goal than to share art, music, videos, and all other sorts of expression through digital devices?

This may all seem pleasant and promising, but the digital age has also brought about problems and chaos in copyright law. Litigation over copyright infringement has kept the courts busy. Viacom, an American media conglomerate with worldwide cable and satellite television networks (i.e. MTV), as well as movie production and distribution (i.e. Paramount Motion Pictures), brought suit against the video-sharing service YouTube in federal court, claiming that it owns over 150,000 videos that YouTube users have shared online. Viacom further alleged that YouTube "harnessed technology to willfully infringe copyrights on a huge scale" (Complaint for Declaratory and Injunctive Relief and Damages, Viacom International Inc., et al. v. YouTube, Inc., et al.). Viacom seeks to order YouTube to pay more than $1 billion in damages.

But Viacom faces a problem. The Digital Millennium Copyright Act (DMCA), signed by President Bill Clinton in 1998, contains a “safe harbor” provision: once the copyright owner notifies a provider about infringing material, that provider has time to remove the infringing material. [DMCA, Section 512(c)(1).] A service provider, such as YouTube, does not need to monitor its services or affirmatively seek facts indicating infringing activity. This was intended to protect copyright owners while making it possible for providers such as YouTube to avoid liability for copyright infringement. Thus, the “safe harbor” provision can immunize YouTube from liability for material posted by its users.

The content industry, those who advocate the use of digital medium for expression of art, music, and film, are big supporters of the DMCA. Mega-corporations take the opposite view. Viacom complains that YouTube does not take enough precautions to deter repeated infringement on its site. Viacom argues that the burden of monitoring infringement should be on YouTube, not them. The debate is on-going.

The law suit is simply the wrong forum for change. Viacom wants to change the policy of "promoting the progress of science and useful arts" that allows the users of YouTube to share videos via online. But it is not up to the courts to change policy. Filing suit in the Supreme Court of the United States would not provide the relief that Viacom sought. As Justice Hugo Black once said, it is not up to the Court to keep the Constitution “in tune with the times.”

The digital age has only just begun, and the law may face decades of uncertainty. But, as technology evolves, so will copyright law. Congress and the courts will face new legal issues of which our Framers never even dreamed.


October 10, 2009.

“Proposed Net Neutrality or How I Learned to Stop Worrying and Love the ‘Net”

-NET NEUTRAILTY, that buzzword your IT department has been talking about, has finally come to bear. Or has it?

Net Neutrality, according to Wall Street Journal Tech Reporter Amy Schatz in her article “U.S. as a Traffic Cop in Web Fight is loosely defined as “force[ing] Internet providers to treat all Web traffic equally, seeking to give consumers greater freedom to use their computers or cell phones to enjoy videos, music and other legal services that hog bandwidth.” So what does its implementation mean?

This working definition certainly frames the issue in perhaps the most relevant context for consumers: Though information is controlled and owned by the producers of content, access to that information is still controlled by the supplier of the medium, in this case Internet Service Providers (ISPs).

Though this content producer and content provider access framework has remained largely constant in the "tangible" world (books, magazines, etc.), with the advent of the Internet the game, seemingly, changed.  The Internet allowed for two things, which in tandem showed unique challenges and in turn invited regulatory scrutiny.

First, it allowed for the empowerment of the individual; never before had an average American had access, cheaply and easily, to vast swaths of information a mere click away. Second, was the ability to visibly mobilize around a cause, never before had consumer groups been able to organize and advocate so quickly and efficiently. These are powerful tools should they need to be exercised.

...They started to become exercised when the Internet became "threatened."

A user's unrestricted, streamlined ability, to browse was in jeopardy. Network owners started to hint that people should have to pay stratified rates for popularity; Want a fast website? You should pay for it. Consumers pushed back claiming this was simply strengthening the already powerful websites position. For instance, how could a start up site afford to pay? Wouldn’t this stifle innovation and kill the Internet we knew?

Telecom providers have long argued that with the increased deployment of data-heavy services and devices the subscriber fee based model of network support is less appealing and perhaps unworkable. Many consumers in smart-phone saturated markets have already started to complain of degraded services, they claim. The Telecoms argue that both consumers and providers should have to pay to play and this would ensure the stability of the network everyone needs.

Is that the free-market at its best? Should more popular sites have to pay more for increased traffic, they already pay for the development of the content and hosting? Should data-heavy applications labor under similar constraints? The FCC has announced four general principles and initiated hearings regarding “Net Neutrality.” What this means in the long term is still unclear but advocates for a "neutral" Internet have seemingly won the day.

What do you think? Please email the author at

Andrew Simmons is a second year law student at Syracuse University College of Law whose interests include Technology Transfer, Innovation Incubation, Communications and Technology Law and Policy.


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