“Interactive media is the next wave,” Cashman said. “With our upcoming mobile phone apps and web integration, we’ll soon be able to charge millions more people for using ‘Yankees suck’ in the privacy of their daily lives.”

In related news, you still cannot trademark “Sex Rod” on “apparel ‘ranging from anoraks to zori.’”

I tend to favor protecting end-to-end in the Internet context, but I’m a bit worried about what the net neutrality rules will look like in practice. There are two ways to think of this problem. First, who is the target of regulatory action? The FCC’s rules seem to look at the CEO or CTO of an ISP or telecom company. I think the correct focus is farther down the corporate ladder: the IT folks who have to implement rules on their routers. The new rules seem fine as policy statements, but how do they translate into what you can and can’t do with bits?

Second, what existing practices are covered by the net neutrality rules? I worry there are some laudable practices that might run afoul of the rules – even if it’s unlikely the FCC would seek enforcement against them. (Safety that depends on agency discretion is not particularly comforting.) Here’s a fast list of practices that might violate net neutrality right now:

• Port blocking – can ISPs prevent you from sending e-mail except through their servers by blocking port 25? Many, including Verizon, already do. (See Rule 2 in the Press Release.)
• Network Address Translation – NAT rewrites IP addresses to ensure that packets reach their destination. Does altering header information violate the rules? (Rule 6 at least, maybe Rule 4.)
• Spam filtering – ISPs routinely drop connections, or quarantine messages, from known spammers and spam-friendly destinations. (Rules 1, 4.)
• VoIP routing – some telcos route their own VoIP traffic across their network rather than the public Internet, which is more efficient (assuming both ends of the conversation have the same provider). That’s almost certainly out. (Rule 5.)
• Virus prevention – some educational institutions scan connecting devices for Trojans / viruses / malware, or software that protects against them, and condition network access on passing this scan. (Rule 3, though doubtless the FCC would use the “harm” criterion as a dodge.)

So, I’m worried about how the FCC’s legal rules are implemented in code. I think we need a lot more guidance from the agency, particularly since net neutrality still feels somewhat like a solution in search of a problem…

• It’s canonical, complete, and up-to-date, coming as it does directly from the FR publisher. This solves a number of problems with private actors’ efforts to provide open access to primary legal source materials, as necessary and valuable as those efforts continue to be (particularly for the great bulk of the iceberg “below the waterline”—to wit, the two centuries of government data predating the digital era, published only in paper form). Pagination of the original source is also preserved to aid pinpoint citation.
• It standardizes regulatory OA policy across the entire Executive Branch. No more agency-by-agency variation in the ease of finding proposed regs online. (Memo to the judicial branch: time for the lower federal courts to catch up to what the Supreme Court is already doing in OA archiving!)

More available at my old hometown rag and at BoingBoing.

In light of the financial meltdown of 2008, it is reasonable to question whether the prior decade’s emphasis on corporate compliance – the internal programs that corporations adopt in order to educate employees, improve ethical norms, and detect and prevent violations of law – has been fruitful. This Article contends that the key problem with compliance is that we regulate it through an adversarial system that pits federal prosecutors against corporate defense counsel, fueling distrust between corporate entities and the government, and between the corporate employees and the internal monitors tasked with ensuring compliance. Despite this adversarial atmosphere, a number of scholars have suggested that corporate compliance is an example of a more collaborative regulatory approach known as “New Governance.” This Article challenges that notion, arguing that the government’s adversarial stance all but eliminates the experimental and collaborative approach championed by the New Governance movement. The Article further concludes that a New Governance model of compliance regulation is unlikely to take hold. Nevertheless, policymakers should consider New Governance’s administrative stance in lieu of the more punitive, “war-driven” approach that adjudication usually encourages.

We’ve seen a wave of compliance-oriented information law in recent years – perhaps most notably Sarbanes-Oxley – and it’s useful to ponder how worthwhile this approach is likely to prove.

Update: The action figures are available for purchase! (Hat tip: Ted Janger)

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

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

A few other observations after the jump:

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

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

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

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

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

I draw three lessons:

1. When someone accuses you of infringement and asks why you did not obtain legally required licenses, do not reply, as Ellen’s producers allegedly did, that you don’t “roll that way.” Otherwise, your adversary will reply:

“As sophisticated consumers of music, Defendants knew full well that, regardless of the way they rolled, under the Copyright Act, and under state law for the pre-1972 recordings, they needed a license to use the sound recordings lawfully”

2. Despite the usual tendency of major TV and film studios to be much more cautious than necessary about IP clearance and licensing, sometimes they screw up too. Even when they are, as the plaintiffs point out, “sophisticated consumers of music.”

3. I always wondered if there were some legal remedy for those dances. Once again, IP comes to the rescue.

Here’s the full abstract of the new article:

Social marketing is among the newest advertising trends now emerging on the internet. Using online social networks such as Facebook or MySpace, marketers could send personalized promotional messages featuring an ordinary customer to that customer’s friends. Because they reveal a customer’s browsing and buying patterns, and because they feature implied endorsements, the messages raise significant concerns about disclosure of personal matters, information quality, and individuals’ ability to control the commercial exploitation of their identity. Yet social marketing falls through the cracks between several different legal paradigms that might allow its regulation—spanning from privacy to trademark and unfair competition to consumer protection to the appropriation tort and rights of publicity.

This Article examines potential concerns with social marketing and the various legal responses available. It demonstrates that none of the existing legal paradigms, which all evolved in response to particular problems, addresses the unique new challenges posed by social marketing. Even though policymakers ultimately may choose not to regulate social marketing at all, that decision cannot be made intelligently without first contemplating possible problems and solutions. The Article concludes by suggesting a legal response that draws from existing law and requires only small changes. In doing so, it provides an example for adapting existing law to new technology, and it argues that law should play a more active role in establishing best practices for emerging online trends.