Regulatory Review of Proposed NBC-Comcast Deal Begins

The pending deal between NBC Universal and Comcast has found an unlikely opponent in former NBC-funnyman-turned-Senator, Al Franken (D-Minn.).

As we reported in December 2009, the joint venture agreement would leave Comcast owning 51 percent and G.E. owning 49 percent of NBC Universal. However, it seems predictions that the merger would face intense regulatory review have been realized. Congressional hearings on the deal began last Thursday with the Senate Subcommittee on Antitrust, Competition Policy and Consumer Rights discussing whether the deal will benefit consumers or hurt them.

The hearing was not without lighter notes. Pointing to NBC’s recent late night debacle, Rep. Mike Rogers (R-Mich.) quipped, “to my friends at NBC: I have an opening for a constituent humorist specialist. If Conan would call my office, we could probably arrange to help you all out.” Rep. Jay Inslee (D-Wash.) opened his comments with the words: “we are here to talk about control of America’s most precious asset, and that of course is Tina Fey.”

However, the hearing also expressed serious concerns about the proposed deal, with none other than NBC alum Al Franken “coming out swinging” against the merger. Franken, who was a regular on NBC’s Saturday Night Live for years, dismissed the claims made by Comcast and NBC Universal that the partnering of the nation’s largest broadband and cable provider with the entertainment giant would not harm competitors or the public.

The concerns expressed at the hearing focused primarily on higher prices and fewer choices for consumers. There was speculation that Comcast could “inhibit” the access of consumers to TV content who are not Comcast customers. Further, that the new Comcast-NBC Universal team could block smaller competitors from content in the online space. It was also suggested that local NBC affiliates will be at a competitive disadvantage on the programming front after a merger and that the deal will lead to higher cable rates.

Conversely, others pointed out that vertical integration could lead to greater innovation and drive more competition in the already competitive market. And there were reassurances from Comcast CEO Brian Roberts, including a promise “to be reliable stewards of the national treasures of NBC and NBC News.” Franken’s curt response: “you’ll have to excuse me if I don’t trust these promises, and that is from experience in this business.”

– Donna Baldry

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NFL Versus . . . Who Dat?

Some T-shirt vendors were asking this question after they received cease-and-desist letters from the National Football League compelling them to stop selling shirts that included the traditional cheer of New Orleans Saints fans.

The NFL had asserted rights to “who dat” earlier last week through the Florida Department of State, and it issued cease-and-desist orders against New Orleans vendors, including the Fleurty Girl shop on Oak Street, which sells Saints memorabilia decorated with the phrase. The NFL claimed the shirts infringe on a legal trademark it owns.

Many shop owners were deeply concerned. “If it’s not public domain, I just need to know ‘Who Dat’ gets the check,” said Lauren Thom, of Fleurty Girl.

“How can they put a trademark on something that’s been around for 150 years?” said Robert Lauricella, a 50-year-old oil field sales representative. “Just because the Saints have made the Super Bowl, why does everybody have to make a buck?”

Even Governor Bobby Jindal got involved in the debate over the weekend, asking the state attorney general to investigate and possibly sue the NFL over its position. But on Monday, the attorney general’s office said it would not file a lawsuit.

Apparently, the NFL has recoiled its attempt to restrict the use of the Saints fan phrase, “Who Dat.” The NFL now says the phrase is only problematic when used together with the Saints logo.

The move came after U.S. Senator David Vitter, and other politicians, including Representative Charlie Melancon, D-Napoleonville, jumped into the recent controversy over the NFL’s claims. Vitter’s letter to NFL Commissioner Roger Goodell read as follows:

Dear Commissioner Goodell:

I was stunned to learn recently that the NFL is taking the position that it owns the exclusive trademark of the term “Who Dat” and has even threatened legal action against some mom-and-pop merchants selling t-shirts using the term. I would urge you to drop this obnoxious and legally unsustainable position and instead agree that “Who Dat” is in the public domain, giving no one exclusive trademark rights.

….

Perhaps more significant than this history, “Who Dat” has become part of New Orleans and Louisiana popular culture. For the NFL to try to claim exclusive ownership of it would be like me registering and trying to claim exclusive ownership of the terms “lagniappe” and “laissez les bons temps rouler!”

Under Paul Tagliabue’s leadership, the NFL was an unbelievable partner in helping us recover and rebuild after Hurricane Katrina. Thank you again. We look forward to your dropping your “Who Dat” position so that this partnership can continue without strain or blemish.

Sincerely,

David Vitter

Junior Senator of Who Dat Nation

Representatives for Vitter reported that the senator welcomed the NFL’s change of heart, but that he still had some issues to iron out. Now that all of the commotion surrounding “Who Dat” has fizzled, the next question is “Who is going to the Super Bowl parade?”

– Traci Galbreath

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Monday Morning JetLawg

In the news . . .

Google and NSA team up to fight cyberattacks.

Scientists discover energy teleportation.

Seventh Circuit upholds prison ban on Dungeons & Dragons against First and Fourteenth Amendment challenge.

Australian copyright holders lose ability to compel ISP assistance. Meanwhile, new Aussie law takes hack at political speech anonymity.

FBI wants ISPs to keep logs.

YouTube movie rental experiment a small success.

More news in the e-book world: Amazon faces backlash from publisher over book prices.

FDA reports large increase in amount of fines for pharmaceutical companies since beginning of Obama administration.

Superbowl and other popular sports events lead to rise in questionable auction/Craigslist listings.

NFL Players Association wins case over league preventing owners from dismantling the supplemental revenue sharing pool.

Hulu website may end free ride for popular television shows.

Prosecutors in Michael Jackson case planning to bring manslaughter charge via a preliminary hearing rather than grand jury indictment.

Popularity of “catfight” videos shows YouTube’s inability to filter out potentially illegal conduct.

Curious George and Thomas & Friends toymaker agrees to $200,000 settlement for lead paint violation.

Former wide receiver Michael Irvin accused of rape and files $100 million countersuit.

 

Jersey Shore Isn’t Getting Any Fist Pumps from the NIAF

Just hours after MTV announced that the cast of its hit show Jersey Shore will be returning for a second season, the National Italian American Foundation (NIAF) issued a press release, expressing “continued concerns” about the show. Although the NIAF praised MTV for discontinuing the use of “the offensive word ‘guido’ in voice-overs and promotional spots,” the press release called for further action. The NIAF wants MTV to make clear that the term “guido” transcends ethnic lines and is instead descriptive of a “youthful expression and lifestyle predominantly visible in the Northeast.” Additionally, the NIAF objects to Jersey Shore’s billing as a reality show, because of its heavy editing and scripted segments.

Although MTV has yet to respond to the release, the cast members addressed their possible perpetuation of Italian American stereotypes on The Today Show Monday morning. Mike Sorrentino (a.k.a. “The Situation”) seemed to speak for the group, saying:

We represent ourselves. We’re not saying we’re a definition of Jersey, or a definition of New York, or a definition of Italians. I just happen to be Italian. I happen to have some spiky hair and a six-pack, and I am proud to have that. And if you don’t like me, I don’t care. I still get 5 million viewers Thursday nights at 10p.m.

And with such high ratings, MTV probably doesn’t care if you like him either. Filming for season two starts in just a few weeks.

– Kate Thornton

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Cell Phone Bans Fail to Deliver Focus to Distracted Drivers

Aiming to reduce the number of automobile accidents, a handful of states have enacted handheld cell phone bans for all drivers. However, a new study from the Highway Loss Data Institute (HLDI), a nonprofit organization funded by the auto insurance industry, suggests that such bans may be failing to make the roads any safer. The study compares the number of automobile collision insurance claims made in states with cell phone bans to the number of collision claims made in neighboring states without cell phone bans, and finds no significant difference between “ban states” and “ban-free states.” There is “no marked downward trend in the cell phone ban states relative to their neighbors, as might be expected of a law intended to keep eyes on the road and minds from wandering.”

The president of the Insurance Institute for Highway Safety (IIHS) and HLDI, Adrian Lund, remarked:

The laws aren’t reducing crashes, even though we know that such laws have reduced hand-held phone use, and several studies have established that phoning while driving increases crash risk.

There are at least a couple of reasons why the study’s suggestions about the futility of cell phone bans may be flawed. First, rather than tracking cell phone related collision claims specifically, it tracked all collision claims. Had the study looked at the “number of claims as a direct result of mobile phone use before and after the ban,” perhaps it would have arrived at a different conclusion. Additionally, geography may not be a sensible way to compare state data, so perhaps the study’s comparison of cell phone ban states with neighboring ban-free states was flawed.

The HLDI noted that cell phone bans have succeeded in getting drivers to switch from handheld cell phones to hands-free cell phones while driving. It appears, however, that the problem cell phones pose is not simply that drivers become distracted solely because they must physically hold the cell phone while attempting to drive. Rather, the problem, as summed up by IIHS spokeman Russ Rader, is generally distracted drivers:

Hands-free devices are no less risky than using a handheld phone. And this indicates that the issue is really about the distracted driver. It’s much bigger than drivers using cell phones.

In other words, cell phones are just one of a myriad of ways drivers become distracted. Reaching into the backseat to grab a water bottle, messing with an iPod, dealing with bickering children, putting on lipstick, checking one’s teeth in the mirror, and trying to put ketchup on a chicken nugget all produce the exact same thing cell phones produce: a distracted driver.

More research is needed before we can fully understand the effectiveness of cell phone bans. Moreover, even if such bans do not make a substantial dent in the number of automobile accidents, they may still be beneficial as part of a larger overall public safety message that drivers need to focus more on driving while on the road. My sense, though, is that cell phone bans may be useless, for in today’s ADD-infected, hyper-multitasking society, people will always find some new method of distraction. Sadly, asking drivers to simply focus on the task of driving while on the road is probably too much to ask.

– George Gaskin

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Hey, Google, Get Off My Lawn!

Even as a law student, when I look at Google’s “Street View” feature, the last thing I’m thinking about is a lawsuit. A lawsuit, however, is just what Aaron and Christine Boring of Pennsylvania thought when they saw their house on street view.

Our story begins back in 2008, when the Borings discovered that their home was depicted on Google’s street view feature. Of course, they live on a private road, and so in the parlance of boxing,“it was on.” The Borings filed suit in Pennsylvania state court alleging more torts than you would see on a first-year law school exam. Specifically, the Boring’s complaint included accusations that Google had committed torts in the line of invasion of privacy, trespass, negligence, and conversion, and that the Borings were entitled to consequential and punitive damages to the tune of $25,000 a claim, as well as injunctive relief.

Needless to say, Google was not about to take a default judgment. The case was removed to federal court, and a 12(b)(6) motion was filed by Google and subsequently granted by the court on all claims. Game over, right? Nope: the Borings appealed to the Third Circuit.

The Third Circuit released its opinion last week and, surprisingly, let the Borings back into court on one of their claims: trespass. The court stated that if the road were indeed a private road, then the Borings have a cause of action if Google drove on it. Hence, it looks like the Borings will get to go to discovery and then maybe even to trial.

One way of looking at this case is that it is a validation of old-school common law property principles, a rejection of frivolous claims against a corporate giant, and then a refusal to monkey around with the Internet and tort law any more than necessary. I suppose that is all accurate.

The other way of looking at this though is that it is the triumph of stupidity over common sense. After all, the Borings now get to go to discovery. Who in their right mind really wants to issue discovery requests to Google? GOOGLE IS A SEARCH ENGINE. Imagine what will happen when the Boring’s lawyer asks for “all documents in Google’s possession that relate to the present case.” Google will object to the documents that are privileged, and then print out each and every one of the documents stored in its server’s cache. Last I checked (by Googling it, of course), it looks like there are 860,000+ webpages out there that relate to this lawsuit that are currently in Google’s cache. Something tells me that the Borings won’t be pressing the suit any further once they get discovery materials delivered by the truck load. That said, if I were the Borings, I’d walk away from this one right now before my legal fees start to add up. Of course, as this is the triumph of stupidity over common sense, I suspect the dump trucks of discovery should start rolling in any day now.

– Sean Wlodarczyk

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All-White Basketball League, Coming Soon to a City Near You?

The day before Martin Luther King, Jr. Day, the All-American Basketball Alliance (AABA) announced plans for an all-white basketball league, with teams located in 12 cities across the nation. Only natural born citizens with two Caucasian parents are eligible to play.

Don “Moose” Lewis, the commissioner of the AABA and a former promoter of the International Wrestling Union, claimed that racism is not motivating the league, but rather that “people of white, American-born citizens are in the minority now. Here’s a league for white players to play fundamental basketball . . . .” This “fundamental” basketball is apparently in contrast to the “street-ball” that “people of color” now play. Lewis said the league stems from fan dissatisfaction with players “flipping you off or attacking you in the stands or grabbing their crotch[.]” He believes that “in a free country we should have the right to move ourselves in a better direction.” Of course a “better direction” means excluding people of other races.

Lewis may have forgotten about the infamous Bill Laimbeer, known for his overly physical play, or, more recently, Chris Anderson’s NBA disqualification for drug abuse. These incidents may not rise to the level of Gilbert Arenas’s bringing a gun into the locker room, but let’s not pretend that only non-white players have created the “culture” that Lewis abhors.

The league, based in Atlanta, is looking for “licensees” willing to pay $10,000 in each of 12 cities throughout the Southeast. Although Lewis anticipates finding fans in every team city, he thus far has received only threats from people citing racism and refusals from potential team cities. Moreover, Lewis doesn’t have a plan for where teams will play, and given the negative response to date, he might be hard-pressed to find venues willing to support such a league.

Despite at least one blog’s belief that this stunt is designed to get Lewis’s name back in the papers, Lewis seems certain that the AABA will succeed: “People will come out and support a product they can identify with. I’m the spoken minority right now, but if people will give us a chance, it’ll work . . . .”

Even if an all-white basketball league could succeed in finding players, licensees, cities, and venues, would anyone, besides Lewis, want it to? It makes you wonder, in a country as diverse as ours with an African-American president in the White House, how far have we really come?

– Sarah Duncan

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Monday Morning JetLawg

In the news . . .

Trademark disputes have already hit the Apple iPad.

New implants use human energy to power electronic devices.

eBook pricing dispute hits Amazon: how much is too much for a bestseller?

California “green rush” faces setback with new L.A. ordinance.

Television host Nancy Grace loses battle to ban cameras from deposition in wrongful death case.

New interactive computer game allowing teenage players to buy condoms and adopt children all in the name of “style” raises controversy in UK.

Blogger/NBA player Paul Shirley gets the boot from ESPN over Haiti remarks.

Actor Rip Torn busted for what appears to be a drunken bank robbery.

Oklahomans upset over homosexuality in new Arthur children’s book.

The potential effect of Gilbert Arenas’s gun suspension on his bulky contract with the Wizards.

Forget this: here’s a sports cause worth supporting.

 

The RIAA’s Never-Ending Battle Over File Sharing

On Friday, January 22, Judge Michael Davis reduced the jury award by ninety-seven percent in a case brought by the Recording Industry Association of America (RIAA) against Minnesota mother Jammie Thomas-Rasset for copyright infringement of twenty-four songs obtained through illegal file sharing, calling the original fine “monstrous and shocking.” This case was the first file sharing case to make it past the settlement stages and into court, and has now been tried to a jury twice. The jury verdict of $222,000 in the first trial was thrown out when the case was declared a mistrial. In a second trial, the jury convicted Thomas-Rasset and assigned a $1.92 million verdict in favor of the RIAA, a fine of $80,000 per song. Last week this verdict was reduced to $54,000, amounting to $2,250 per song. The RIAA plaintiffs were given seven days to respond, either to accept the lower verdict or seek a new trial.

Now the world is wondering what will happen in the case. Though the RIAA has stated its belief that a higher judgment is appropriate and does not want to set a precedent for future proceedings, it appears the plaintiffs believe that the Thomas-Rasset case has gone on too long. Considering the RIAA was willing to settle with Thomas-Rasset for $3,000-$5,000, the $54,000 judgment is certainly an improvement. The RIAA is no longer going after individuals in file sharing cases, and only has one other active file sharing case. To avoid dragging this matter out any further, it would be best for RIAA to just accept the remittitur.

But that will not be the end of the story. Even if the RIAA agrees to the lowered verdict, Thomas-Rasset’s attorneys have announced that they will appeal the verdict, stating that even a fee of $2,250 per song is unconstitutional given the wide disparity between the fee and the amount it would have cost the defendant to purchase the songs legally (around $1). The defense is hoping to avoid any fee at all, and in comparison, $54,000 is a hefty sum.

Even though the appeal is now likely, it does not seem to be in the best interests of the RIAA to seek a new trial for higher damages. It will only seem to make the association look greedy, a view already espoused by much of the public, and will cause an already long-drawn-out case to be unnecessarily extended with no guarantees of any greater success. Even if it were to win again in the new trial, this remittitur will likely keep a jury from entering a higher verdict, as Judge Davis’s order specifies that the $2,250 fine per song is the maximum amount a jury could reasonably award for the infringement at issue.

With a pending motion for a new trial in the case of Joel Tenenbaum, a file sharer against whom a $675,000 verdict was entered in July 2009, and the shift away from suing individual file sharers for deterrence purposes, the RIAA has enough on its plate and no good reason to continue pursuing the Thomas-Rasset matter beyond any defense appeal that may arise.

– Christine Hawes

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Conan Gets $32.5 Million, But No Triumph

Publice appearance by Triumph, the Insult Comic Dog

Conan O’Brien and NBC Universal finally reached an agreement that will allow the talk show host to depart The Tonight Show. The fate of a number of beloved characters created by the comedian and his staff, however, is less certain.

NBC agreed to a deal under which O’Brien is to receive $32.5 million for the remaining two-and-a-half years on his contract, with an additional $12 million to settle the contracts of his staff, including $4.5 million to longtime executive producer Jeff Ross.

While clearly there was a great deal of money at stake in these negotiations, fans were perhaps most concerned about their favorite characters.

NBC has stated that it will retain the rights to many of Mr. O’Brien’s characters including, Pimpbot 5000, Conando, and of course, the Masturbating Bear.

There is slightly more controversy over who owns the rights to Mr. O’Brien’s most popular (and infamous) character, Triumph, the Insult Comic Dog. It is unclear who owns the rights to Triumph because the character was created by O’Brien’s former writer and longtime friend Robert Smigel before he was employed as a writer for NBC. Triumph’s official website is run by Warner Records, producer of Triumph’s album, Come Poop With Me. NBC claims that it co-owns the rights to Triumph with Smigel.

Happily, however, for those who side with O’Brien in his battle with NBC, it has been reported that the theme music accompanying several characters is outside NBC’s grasp. Max Weinberg and Jimmy Vivino, members of O’Brien’s house band took out copyrights in 2004 for the music that is played during appearances by Pimpbot 5000 and the Masturbating Bear, as well as music for recurring sketches like “In the Year 3000.”

Commentators generally believe that the agreement was a good deal for Mr. O’Brien because it is not immediately clear that the characters will be valuable to NBC in any way. The characters are so tied to O’Brien himself that it would be difficult to envision NBC using them with another host. Bassam Ibrahim, an IP lawyer with Buchanan, Ingersoll & Rooney agreed, saying that the only reason for NBC to keep the characters would be to prevent O’Brien from using them to compete with Jay Leno on another network.

Ibrahim also said that Conan might be able to do make an end run around the agreement by subtly changing his characters in order to avoid a copyright violation. He could take a page from David Letterman who tweaked characters he was contractually obligated to leave behind.

In the end, however, it seems that both O’Brien and NBC should start with a clean slate. Using Mr. O’Brien’s characters on a different show or with a different host will simply remind people of a controversy in which many saw NBC as the bad guy. It would create even greater fan backlash against the network. And while Mr. O’Brien could use similar characters, his image would also be served best by moving on. O’Brien needs to demonstrate that he can draw an audience while not engaged in a controversial contract battle, and that his comic genius extends beyond the characters he and his staff created for NBC.

There have been a number of rumors about where Mr. O’Brien and his comic team will land next. For now, though, one thing seems certain: wherever he goes next, many of his popular characters will remain behind.

– Jeremy Francis

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