TechLaw

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.

Minor Win for Bloggers in Fourth Circuit's GHF Ruling

En route to tossing out a $2.9 million jury verdict for invasion of privacy and intentional infliction of emotional distress against the author of a hateful screed at <godhatesfags.com>, the U.S. Court of Appeals for the Fourth Circuit slipped in a goodie for bloggers at footnote 13:

[W]e believe that the First Amendment protects nonmedia speech on matters of public concern that does not contain provably false factual assertions. Any effort to justify a media/nonmedia distinction rests on unstable ground, given the difficulty of defining with precision who belongs to the "media."

Similar statements rejecting a distinction, for First Amendment purposes, between official "media" and non-media speakers were made in Flamm v. Am. Ass'n of Univ. Women, 201 F.3d 144, 149 (2d Cir. 2000), and In re IBP Confidential Bus. Documents Litig., 797 F.2d 632, 642 (8th Cir. 1986), both of which the Fourth Circuit cited.

The case is Snyder v. Phelps, No. 08-1026 (4th Cir., Sept.24, 2009).

Selective Outrage in Rocky Mountain Bank Case

I am a little bit mystified at the expressions of shock and outrage (yes, "outrage") at the news that Judge Ware has granted Rocky Mountain Bank's request for a TRO deactivating a Gmail account to which the bank had carelessly e-mailed detailed financial information on 1,325 bank customers.

Apparently this development alarms the many people out there in cyberspace who have the same attachment to their e-mail accounts as the National Rifle Association does to firearms.

The victims here are the bank customers, whose personal information is now certainly residing on several Google servers and possibly countless other online locations. The reasoning in the bank's motion for a temporary restraining order and the declaration of its president strikes me as unassailable.  The bank has a duty to do what it can to safeguard the personal, financial information of its customers.

The bank's customers are presently at risk of identity theft. The bank's shareholders are at risk of seeing their investment wiped away by a nasty data breach incident. Inaction, not action, is what should provoke "outrage" in these circumstances.

Google is also doing the right thing, following its privacy policy and the Electronic Communications Privacy Act by insisting on a court order before turning over information about its users. Now it has just such an order. Google's lawyer, Al Gidari of Perkins Coie in Seattle, filed an appearance in the case this afternoon. In another case, Google offered only token opposition, see the "Skanks of NYC" ruling, a precedent that may be relevant here.

As for the owner of the Gmail account, who has not yet been identified and who did not respond to the bank's subsequent attempts to contact him or her via the Gmail account, it is very difficult to see what rights might have been infringed by the bank's action against the account. Speculation about whether computer users have First Amendment claims against private computer network operators is interesting but fanciful.

Here are three cases that say computer users have no First Amendment rights against network operators:

• Kinderstart.com v. Google Inc., No. 06-2057 (N.D. Cal., July 13, 2006) (Google has no First Amendment duty to protect free speech rights of websites it indexes);
• Howard v. America Online Inc., 208 F.3d 741 (9th Cir. 2000)(interactive computer network is not a common carrier under Communications Act, not a state actor for First Amendment purposes);
• Estavillo v. Sony Computer Entertainment, No. 09-3007 (N.D. Cal., Sept. 22, 2009)(Sony Playstation 3 Network owed no First Amendment duty to user terminated for allegedly violating terms of use).

I'm not aware of any cases going the other way, or cases remotely suggesting that the owner of the Gmail account at issue in the Rocky Mountain Bank case has been denied due process or any other constitutional or statutory right. Hey, he or she has already gotten more due process than you get at Twitter.

Venkat has more to say here.

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.

Federal Circuits Heading Toward Busiest Cyberlaw Year Yet

Seems like recent weeks have produced a blizzard of cyberlaw output from federal circuit courts. Van Alstyne and iParadigms from the Fourth Circuit, In re Sony BMG Music Entertainment and Noonan v. Staples from the First Circuit, and then the big one, Rescuecom v. Google, from the Second Circuit.

Of course, there should be more cases, as online communications become pervasive in our business dealings and personal affairs. Looking back through this year's BNA Electronic Commerce & Law Report, I counted 22 federal circuit-level decisions with cyberspace relevance decided so far this year. That's quite a few relative to prior years. For example, in 1999 we published accounts of just 38 federal circuit-level court opinions (I had a "big tent" view of cyberlaw back then, so the number is likely a little inflated.).

If the current pace keeps up, the circuits should put in their busiest year ever in cyberlaw, surpassing 2003, when I found 91 circuit-level decisions to write about. The data for the past 10 years is set out in the table below:

Year	Decisions
1999	38
2000	49
2001	57
2002	70
2003	91
2004	62
2005	77
2006	56
2007	75
2008	84
2009	23
TOTAL: 682

For whatever reason, a lot of cyberlaw cases were decided in 2003. The year started out with the Ninth Circuit's Kremen v. Cohen on Jan. 3 and ended 90 federal circuit decisions later, on the other side of the country, with the D.C. Circuit's Recording Industry Association of America v. Verizon Internet Services on Dec. 13. Five years later, we are finally creeping back to 2003's high-water mark. The federal circuit court decisions with cyberlaw significance so far in 2009, by my reckoning, are listed below. I've included a link and a summary for the most important decisions.

Friskit Inc. v. RealNetworks Inc. (Fed. Cir. Jan. 12, 2009)

Pitt County NC v. Hotels.com (4th Cir. Jan. 14, 2009)

Doe v. AOL LLC (9th Cir. Jan. 16, 2009)(Forum selection clause designating Virginia as the forum to adjudicate disputes between America Online and its members violates California public policy because it diminishes California residents' right to bring class actions)

Quon v. Arch Wireless Operating Co. (9th Cir. Jan. 27, 2009)(Text messaging service provider may not, consistent with the Stored Communications Act, surrender transcripts of messages sent without the consent of either the sender or the recipient)

United States v. Lewis (1st Cir. Feb. 2, 2009)

Internet Solutions Corp. v. Marshall (11th Cir. Feb. 10, 2009)

Verizon Calif. v. FCC (D.C. Cir. Feb. 10, 2009)

Oldfield v. Pueblo de Bahia Lora SA (11th Cir. Feb. 12, 2009)

Noonan v. Staples Inc. (1st Cir. Feb. 13, 2009)(Company could face defamation liability for publishing a mass e-mail containing true statements about a former employee if it acted with “ill will”)

National Cable & Telecommunications Assoc. v. Federal Communications Commission (D.C. Cir. Feb. 13, 2009)

Video Software Dealers Assoc. v. Schwarzenegger (9th Cir. Feb. 20, 2009)(California law prohibiting the sale of violent video games to minors does not survive strict scrutiny under the First Amendment)

United States v. Siegelman (11th Cir. March 6, 2009)

In re Yahoo! Inc. (5th Cir. March 11, 2009)(Forum-selection clause in an agreement between Yahoo! Inc. and American Airlines, through which American Airlines purchased sponsored advertising, did not control in trademark lawsuit not arising from advertising agreement)

Internet Specialties West Inc. v. Milon-DiGiorgio Enterprises Inc. (9th *Cir. March 17, 2009)

Van Alstyne v. Elec. Scriptorium Ltd. (4th Cir. March 18, 2009)(Former marketing executive who discovered that her boss accessed her personal e-mail account during and after her employment must show she suffered actual damages in order to obtain statutory damages under the Stored Communications Act)

Levesque v. Doocy (1st Cir. March 19, 2009)

Consulting Engineers Corp. v. Geometric Ltd. (4th Cir. March 23, 2009)

Chalk v. T-Mobile USA Inc. (9th Cir. March 27, 2009)

Rescuecom Corp. v. Google (2d Cir. April 3, 2009)(Google's sale of trademarks as sponsored links is an actionable use in commerce for purposes of the Lanham Act)

Beltronics USA Inc. v. Midwest Inventory Distribution LLC (10th Cir. April 9, 2009)(In trademark infringement action, the first sale defense is not available to infringers when they resell trademarked goods with a warranty different from the manufacturer's and do not sufficiently disclose the difference to consumers)

Southern Co. v. Dauben Inc. (5th Cir. April 15, 2009) (Trial court court abused its discretion by issuing a preliminary injunction under the Anticybersquatting Consumer Protection Act without considering domain name registrant's fair use defense)

A.V. v. iParadigms (4th Cir. April 16, 2009)(Web site's act of copying student papers for purpose of detecting plagiarism was non-infringing fair use, despite commercial motivation and fact that entirety of papers were copied)

In re Sony BMG Music Entertainment (1st Cir. April 16, 2009)(Federal district court exceeded its discretion in allowing streaming Internet coverage of a hearing in a recording industry case against a university student alleged to have illegally downloaded and shared copyrighted music files over the Web)

If you think I've left off a case, please send me an e-mail.

---

Follow me on Twitter at @bnatechlaw

Back to the Future at Tenenbaum Copyright Trial

A few hours ago I stopped by attorney Ray Beckerman's blog and found there the prepared statement of musician John Perry Barlow. The statement offers a glimpse of testimony he is prepared to offer in the case of Sony BMG Music Entertainment v. Tenenbaum, a theatrical production whose last act promises to teach us something about the constitutionality of tough statutory damages for copyright infringement.

Barlow is famous as lyricist for the Grateful Dead, but notable for cyberlaw followers as the author of The Economy of Ideas: Selling Wine Without Bottles on the Global Net, his argument against the application of copyright law to the Internet, and as co-founder of the Electronic Frontier Foundation.

The Economy of Ideas was written in 1992-93. If you have never read it or, like me, you haven't read it for over a decade, you really owe it to yourself to read this essay. Set aside the fact that Barlow is just hammering away at the recording industry. Read the essay for what he is saying about the promise of digital technologies. Ideas about the attention economy, the importance of relationships and the unimportance of digital objects and copying, ideas about monetizing information through personalization, point of view, and authority, Barlow had it all down in 1992. So much of what has been written about blogs and social media, Web 2.0, etc., draws from the ideas in this essay. I never see Barlow credited with these ideas, though.

I also went back and read another period piece, Prof. Pamela Samuelson's 1993 The Copyright Grab, her warning to the general public that the federal government and large copyright owners -- in order to pave the way for digital distribution of their property -- was on the verge of turning over to the copyright owners a large measure of the public's right to share and use copyrighted content. Prof. Samuelson called the plan a "maximalist agenda" for copyright owners. To her way of thinking the agenda had eight action items (nearly all of which found their way into law in the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified in various sections of Titles 5, 17, 28 and 35 U.S. Code)), which were:

1. Give copyright owners control over every use of copyrighted works in digital form, including fleeting RAM copies.
2. Give copyright owners control over every transmission of works in digital form.
3. Eliminate fair-use rights whenever a use might be licensed.
4. Deprive the public of the "first sale" rights it has long enjoyed in the print world.
5. Attach copyright management information to digital copies of a work.
6. Protect every digital copy of every work technologically and make illegal any attempt to circumvent that protection.
7. Force online service providers to become copyright police.
8. Teach the new copyright rules of the road to children throughout their years at school.

What is interesting to me is that, DMCA notwithstanding, many of the points in Prof. Samuelson's copyright owner agenda continue to be fresh and raw today, unsettled topics of great interest and debate. Can the president give the Queen an iPod loaded with music? Did the cable company make infringing buffer copies of television programs in the Cablevision remote DVR case? Can Amazon's Kindle read a book aloud? To what extent should information intermediaries (ISPs, Google, YouTube, universities) serve as copyright police?

The problem today is the failure to implement item #8 on Prof. Samuelson's copyright owner agenda. Congress did everything it could do for the copyright-dependent industries, but the belief remained widespread among the public that copying digital files -- especially files containing music -- is, if not entirely lawful, no more than malum prohibitum. Copyright owners saw this problem coming but so far have not been able to solve it. The point is made in another (and I promise my final) document from pre-DMCA days, the so-called White Paper, the Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights. This is the document that Prof. Samuelson derided in the The Copyright Grab. Policymakers and industry clearly anticipated the need for a public education program to stop information users from doing what they were naturally inclined, and technologically enabled, to do: regard themselves as owners of digital information, free to use and distribute as they wished. The problem is, copyright owners failed this task.

In the White Paper's discussion of the need for public education on the new copyright rules, the authors wrote:

It is not only intellectual property law that presents complexities for the NII user. The underlying information technology is also difficult to understand, and it is constantly evolving and presenting users with new capabilities. Just learning about these capabilities and how to use them is difficult enough for users. It is also difficult.for users to understand that they may not be able to always use all of the new facilities to copy, perform and use works that the technology allows.

Overcoming these barriers is also difficult because the market for copyrighted works is complex with many participants. Individual users generally do not appreciate the impact that an unauthorized use of a protected work can have in that market. This is especially true when the unauthorized use has an immediate benefit to the user, and no immediately visible harm to others. How tempting it is to simply make yourself a copy of a piece of shareware and not pay its author, or to make just one copy of a sound recording that someone has put up on a bulletin board. What harm could there be? However, in Cyberspace, where reproduction and dissemination are so easy and quick, even one unauthorized reproduction -- onto a server for instance -- can have a substantial ripple effect that could even supplant the market for legitimate copies of the work.

Just think what happens to the shareware author’s expectation of a profit or the sales of a commercial sound recording if ten thousand individuals make such seemingly harmless personal copies.

...

Initially, respect for copyright protection needs to be highlighted -- intellectual property needs to become a "household word." This element will work in conjunction with the goal of public awareness, but should focus more on the importance of intellectual property, and not simply on its existence. Second, a comprehensive program needs to be developed to target different educational levels. Not only must a curricula be developed and made available for all educational levels, but also a methodology must be established for the continual reinforcement of the importance of intellectual property throughout the lifelong learning of every NII user.

That didn't happen, did it? The laws against unauthorized copyright are tough (draconian some might say), vast public and private resources have been marshaled against information "pirates," Washington is pushing even now for tougher laws and greater cooperation abroad, and yet file-sharing is rampant. And no amount of litigation from the recording industry, it seems, will be able to dislodge the general public's indifference to the copyright law. Nearly sixteen years after Barlow's views about music and copyright were roadkill on the Information Superhighway, he's popped up again, wagging his finger at the car that hit him:

I will explain that the online world presents us with a "gift economy," where no moral blameworthiness attaches to non-commercial sharing, and I will explain why this does not threaten the music industry.

The case is Sony BMG Music Entertainment et al. v. Tenenbaum, No. 03-cv-11661 (D. Mass.)

---

Follow me on Twitter at @bnatechlaw

Cinderella Stories

When it comes to college sports, I always root for Michigan, I can't help it. I always pick them to win it all, even though the last time Michigan won anything was when Chris Webber was on the payroll in 1993. The fact that I am wrong, that I have been wrong for 18 years in a row, means less to me than the pleasure I get from picking Michigan to win it all.

Last night when I finally finished filling out my NCAA basketball tournament brackets (I have Michigan defeating Memphis in the title game), it occurred to me (it was late!) that the way I think about the basketball tournament -- my love of the underdog and my selective memory -- is similar to the way a lot of us view tech policymaking. And that's a bad thing. We tend to cast tech policy matters in terms of win-lose affairs, deluding ourselves into thinking that they will be close, hard-fought close contests. Emotionally, it is satisfying to entertain the idea that the underdog will win. Marketers vs. Privacy Advocates. "Innovators" vs. Telco Operators. IP Owners vs. Fair Use Advocates. But these are never close contests. The same teams always win. What a facile way to look at law.

In sports, as in much of life, we love to root for the underdog. Hoosiers, Rudy, Rocky. It's all the same. Somebody we can identify with lands the big punch, makes a long run, hits the last-second shot and in the process pulls off an improbable yet emotionally satisfying victory.

This is a psychological booby trap that can kill you at tournament time. And in handicapping politics.

That's why they call it March Madness. Delusion is a form of madness. Very few of us possess the hard data necessary to pluck out the best teams among this year's 64 entrants. We have only our emotions. When it comes to filling out our tournament brackets, the exploits of underdogs past loom large in our memories. We remember the underdogs, not the winners.

Not many people remember who won last year's tournament. But everybody remembers Davidson's Stephen Curry draining threes against Gonzaga, Georgetown, and Wisconsin, en route to a two-point loss to Kansas in the Midwest Regional Final.

In 2006, the role of Cinderella was played by George Mason, a small school just south of Washington, D.C., which made it to the Final Four that year, stunning college basketball bluebloods Michigan State, North Carolina, and Connecticut along the way.

Cherished memories of the underdog's rare victory obscures the fact that, in nearly every contest, the favorite wins. David's late, lucky shot against trash-talking Goliath has totally overshadowed the fact that the Philistines dominated the Jews for a generation before that.

The favorite always wins. Three-quarters of the time, anyhow. Perhaps you'll recognize this list of recent tournament winners: Kansas (2008), Florida (2007), Florida (2006), North Carolina (2005), Connecticut (2004), Syracuse (2003), Maryland (2002), Duke (2001), Michigan State (2000), Connecticut (1999), and Kentucky (1998). Not an underdog in the bunch.

Just for facile fun, I've made up a list of the 16 teams I'd put in a hypothetical Tech Policy Bracket. And I've ranked them -- "seeding" in tourney jargon -- according to who has the better record and best prospects for success this year. This list isn't about who I want to win but who has actually been winning these games. All games will be played in Washington, of course.

(1) AT&T. Perennial top seed. Plodding, methodical team. Likes to Big Foot opponents, offense consists mostly of dunks.

(2) IP Owners. Recruits some of the best talent in the country, players have a reputation for flopping. Always pleading with the NCAA for rule changes.

(3) Business Lobbyists. Persistent, in-your-face defensive specialists. Along with AT&T and IP Owners, among the largest donors to the Referee Retention and Retirement Fund. Tends to get the close calls.

(4) Google. Literally came out of nowhere, boasts a "Beat us if you can" attitude. Relationship with referees will be key.

(5) Amazon. Like Google, made it to the Big Dance on hustle alone. Will shoot from anywhere on the court.

(6) Online Marketers. Rarely defeated, they still play with a chip on their shoulder. They love to run up the score on inferior opponents.

(7) White House. Story here is Barack Obama. Lit it up last fall, untested on the big stage.

(8) Apple. Flashy, high-scoring, can beat you with hardware or software. Rabid fans.

(9) Free Software. Fundamentally sound. International fan base. Plays to sellout crowds, possibly due to free ticket promotions.

(10) Bloggers. Reputation for trash-talking and making long shots, players frequently play in their pajamas.

(11) Federal Trade Commission. Fundamentally sound with lots of offensive firepower, but very rarely uses it.

(12) State Legislatures. Historically a powerhouse, lately has fallen on hard times. Resourcefulness is going to be key to victory.

(13) Newspapers. Coping with deteriorating training facilities and loss of alumni support, this year's team is wearing uniforms purchased in 1989.

(14) ICANN. Getting it done with smoke and mirrors, this team often plays abroad. Spends a lot of time on public relations.

(15) Internet User Advocates. Talented but underfunded, the players on this team have not yet learned to play together.

(16) Internet. A hardy opponent, often taken for granted.

(Going to the NIT this year: Microsoft, Yahoo!, Dell, Research in Motion)

Looking to the first round games, I see AT&T (1) easily getting past Internet (16) with a combination of throttling, traffic management, and content deals. The Apple (8) - Free Software (9) matchup is too close to call, I could go either way on it, but I would love to see Apple meet AT&T in the second round. Amazon (5) is going to have a lot of trouble with State Legislatures (12), and I don't see them being able to turn back State Legislatures' need for tax revenues, especially in these tough economic times. Google (4) has been killing Newspapers (13) for years now; that should continue in this game.

The Online Marketers (6) matchup against Federal Trade Commission (11) is game you'd think would be a close one. But historically Online Marketers have won every time. I see them getting through to the next round in easy fashion. It's also a safe bet that Business Lobbyists (3) will crush ICANN (14) in what I see as a low-scoring, defensive battle. I'll be very surprised if ICANN gets makes any of its new gTLD shots.

White House (7) versus Bloggers (10). It's a shame they had to meet in the first round, since Bloggers were so instrumental in Obama's win last fall. I'm going to give this one to White House. Having the Commander in Chief on your team has got to count for something.

The final first round game, IP Owners (2) vs. Internet User Advocates (15), is shaping up to be another walkover. Internet User Advocates didn't score a single point in the Copyright Term Extension Game and scored just a handful of points in the Digital Millennium Copyright Game. No matter how much publicity is given to this game, the fact is that if it wasn't constitutionally required IP Owners and Internet User Advocates wouldn't even be on the same court together.

My Final Four is AT&T, Google, Business Lobbyists, and IP Owners. After that, I don't see Google getting past AT&T. Maybe next year. In the other semi, IP Owners' greater experience and depth, combined with an overwhelming need to win, should get them through to the final. An AT&T-IP Owner final is really too close to call. I've been hearing for years that, if they had the opportunity, they'd cut a deal and share the title. Not this year. My pick: AT&T.

Go Blue.

---

Follow me on Twitter at @bnatechlaw

Rick Boucher, Policy Prognosticator

The RSS feed hauled in this item from the National Journal, As Media Evolves, Hill Tries To Define It:

Speaking at a Center for Democracy and Technology gala last week, Rep. Rick Boucher, D-Va., predicted that federal shield legislation he introduced in February would pass the House and Senate this session. The bill, H.R. 985, would protect reporters from being compelled to reveal confidential sources even under subpoena.

Rep. Boucher could be right here. On the other hand, it didn't take too much digging to find this gem in the BNA archives, Rep. Boucher Predicts Speedy Success for Privacy Bill to Be Introduced Early 2002.

A new Internet privacy bill has been drafted by members of the House of Representatives Energy and Commerce Committee and is scheduled to be introduced in early 2002, according to one of its proponents, U.S. Rep. Frederick C. Boucher (D-Va.). Boucher, who spoke at the Georgetown University Law Center's “Advanced E-Commerce: New Rules, New Realities” conference Nov. 8, in Washington, D.C., said he expected that once introduced, the bill would cut a speedy path through the House and, although it might meet some resistance in the upper house, that the Senate would eventually approve the bill.

“I anticipate passage of this bill to be quite rapid,” he said.

"Rapid." Oh well, you can't be right all the time. And who can predict what shape H.R. 985 will be in, after the Department of Justice is finished with it? If Eric Holder is making predictions about H.R. 985, that's where I'd put my money.