Tag Archives: scotus

U.S. supreme court avoids ruling on limits of federal authority over state and local broadband rules, for now

by Steve Blum • , , ,

When your name is Roswell, reality can be subjective.

The U.S. supreme court declined to wade any deeper into the question of how much leeway local governments have to block installation of cellular towers and equipment. In a decision last week regarding a dispute between T-Mobile and Roswell, Georgia, the court ruled very narrowly in T-Mobile’s favor, saying the city didn’t give its reasons for denying a tower permit soon enough.

Federal telecoms law requires local agencies to give a reason when a tower permit application is rejected, in order to provide a basis for the courts to review the decision if there’s an appeal. In writing for the majority, justice Sonia Sotomayor said there’s only one standard those reasons need to meet…

In short, the statutory text and structure, and the concepts that Congress imported into the statutory framework, all point clearly toward the conclusion that localities must provide reasons when they deny cell phone tower siting applications. We stress, however, that these reasons need not be elaborate or even sophisticated, but rather, as discussed below, simply clear enough to enable judicial review.

The merits of cases like T-Mobile versus Roswell were left to lower courts to decide. Pointedly, justice Samuel Alito said in a concurring statement that big questions about federal oversight of local and state telecom-related decisions are still hanging…

Nothing we say today should be read to suggest that when a locality has erred, the inevitable remedy is that a tower must be built. The Court has not passed on what remedial powers a “court of competent jurisdiction” may exercise. This unanswered question is important given the federalism implications of this statute.

Those federal implications will loom even larger if the FCC decides to preempt state restrictions on municipal broadband projects, as urged by president Obama.

Oops, U.S. supreme court kills cable TV industry

by Steve Blum • , ,

On the other hand, cable still has a fistful of dollars.

Well. That didn’t take long. Barely a fortnight after the U.S. supreme court ruled that Aereo “looks-like-cable-TV” so it must be treated like cable TV (in dissenting justice Antonin Scalia’s phrase), Aero has told a federal trial court judge, OK, we’re cable TV

The Supreme Court’s holding that Aereo is a cable system under the Copyright Act is significant because, as a cable system, Aereo is now entitled to the benefits of the copyright statutory license pursuant to the Copyright Act…Aereo is proceeding to file the necessary statements of account and royalty fees.

The U.S. broadcast networks that originally sued Aereo aren’t buying it, but it’ll be up to the judge – and maybe, eventually, the supreme court again – to sort it out. But if Aereo wins this new argument, the result could be total disruption for the cable industry.

Up until now, if you wanted the benefits of being a cable company, you had few practical choices other than to string wires from poles or launch billion dollar satellite constellations. If Scalia’s caustic logic holds, though, any garage-class start-up can start serving cable TV via the Internet. Technically, it’s still linear programming, but because subscribers access channels on demand, the de facto descent into an a la carte subscription model will be sudden and final.

With virtually no barriers to entry, the days of the $200 a month cable TV bundle will be over. You’ll still need a company with wires to sell you Internet access, though. Without a captive TV market to milk, those companies will either raise their prices or try to run their networks in decidedly non-neutral ways.

Fortunately for them, they’re not common carriers. Yet.

If new tech looks like old tech, old rules apply says supreme court

by Steve Blum • , , , ,

Today’s turn-of-the-knob logic might have made VCRs contraband 30 years ago.

Functionality, not technology, should guide how pre-Internet laws are applied in cyberspace. That’s the essential logic behind a U.S. supreme court ruling on Wednesday, that said that the same copyright rules that apply to cable TV systems also apply to Aereo, an online system for accessing broadcast television signals.

Aereo argued that since viewers were individually activating a tiny receiver and antenna, and selecting which channel to watch, it was more like a VCR than a cable TV system, which streams multiple channels continuously. A majority of the court disagreed, saying it is “a system that is for all practical purposes a traditional cable system”…

Given Aereo’s overwhelming likeness to the cable companies targeted by [1976 copyright legislation], this sole technological difference between Aereo and traditional cable companies does not make a critical difference here…the signals pursue their ordinary course of travel through the universe until today’s “turn of the knob”—a click on a website—activates machinery that intercepts and reroutes them to Aereo’s subscribers over the Internet. But this difference means nothing to the subscriber. It means nothing to the broadcaster.

The majority opinion, authored by justice Stephen Breyer, went to great pains to say it was a narrow ruling and brushed aside concerns that it would have profound and unintended consequences on new technology and services. In a dissent, justice Antonin Scalia called the underlying logic “crude” and warned that the court was gutting its 30-year old Betamax ruling that said because consumers individually decide how to use them, VCRs were legal products…

It will take years, perhaps decades, to determine which automated systems now in existence are governed by the traditional volitional-conduct test and which get the Aereo treatment. (And automated systems now in contemplation will have to take their chances.) The Court vows that its ruling will not affect cloud-storage providers and cable-television systems…but it cannot deliver on that promise given the imprecision of its result-driven rule.

I think Scalia is right. It might be a narrow ruling, but it establishes a broad standard that gives trolls and others in the predatory bar a blunt instrument to attack new products and businesses. We’ll be living – unhappily – with the consequences for a long time.

You can’t patent just an idea, supreme court rules again

by Steve Blum • , , , ,

The Air Force can now defend Earth without fear of trolls.

Doing the job that the patent office should have done in the first place, the U.S. supreme court stepped up to the plate and swatted down a long line of patent trolls. In an unanimous opinion issued today and written by justice Clarence Thomas, the court said that an Australian company, Alice Corporation, can’t take a common, centuries (millennia?) old financial practice – using a middleman to keep both parties honest – and claim a patent on it just because it’s being done on a computer…

There is no dispute that a computer is a tangible system…or that many computer-implemented claims are formally addressed to patent-eligible subject matter. But if that were the end of [it, a patent] applicant could claim any principle of the physical or social sciences by reciting a computer system configured to implement the relevant concept. Such a result would make the determination of patent eligibility “depend simply on the draftsman’s art,”… thereby eviscerating the rule that “‘[l]aws of nature, natural phenomena, and abstract ideas are not patentable’ ”.

Alice sued a foreign exchange company, CLS Corporation, because it had the obviously insane idea of doing its work on a computer without asking permission.

That’s the essence of what the worst patent trolls do: take a common idea or process, and use a computer to implement it. Then, they either find an existing patent that sorta talks about something similar or they submit an impressive looking but more or less impenetrable patent application and wait for the federal patent office to rubber stamp it. At that point, it’s a hunting license to prey on companies or, even, consumers who will pay a substantial but affordable sum upfront, fearing the expense of defending a law suit or the risk of losing.

The supreme court keeps kicking these shysters out the door, and we should be glad they do, but the real problem is congress won’t do anything to endanger the cash that the predatory bar showers on it and the patent office doesn’t have the smarts to know when it’s being snowed.

U.S. supreme court sticks to the strict meaning of patent infringement

There’s good news in the U.S. supreme court’s unanimous decision this week to toss out a patent infringement lawsuit brought by Akamai against a competing content delivery network, Limelight.

The court declined to open a vast new frontier for patent troll claims. Akamai, of course, isn’t a troll – it uses its patented technology to good effect – but it was trying to make the case that a partial (and thus, under law, allowable) duplication of a method it developed was actually an infringement because Limelight told customers how to complete the missing steps themselves. That was no different, Akamai said, than if it had been copied whole in the first place.

Lower courts bought that argument, but fortunately the supreme court disagreed. In the decision, Samuel Alito wrote

A method patent claims a number of steps; under this Court’s case law, the patent is not infringed unless all the steps are carried out…(a “patent covers only the totality of the elements in the claim and … no element, separately viewed, is within the grant”). This principle follows ineluctably from what a patent is: the conferral of rights in a particular claimed set of elements.

Had Akamai’s position been upheld, then the predatory bar could have gone wild and brought lawsuits against any two or more companies or consumers that were doing things that, taken together, looked anything like a patent – dubious or not – held by a troll.

There was no dissent or alternate views offered: the nine justices – left wing to right wing – spoke as one.