New Media Rights files Petition to Deny the AT&T - T-mobile Merger at the FCC

June 3, 2011
Contact: Art Neill, Executive Director, New Media Rights, (619) 591-8870

New Media Rights writes petition to deny the AT&T T-mobile merger to protect consumers' rights

New Media Rights, its parent organization Utility Consumers' Action Network, and our sister organization Privacy Rights Clearinghouse, have filed a petition to deny with the Federal Communications Commission (FCC). We oppose the AT&T T-mobile merger on the grounds that the merger will most likely have a negative effect on innovation, access to the internet, customer service quality, prices, service availability, and consumer privacy.

Our petition makes clear the FCC must investigate AT&T's assumptions and claims carefully, and that on balance, the merger is not in the public interest of America's wireless consumers. We discuss the impact on consumers, which would most likely be reduced service offerings, price competition, and customer service quality.

In the petition we assert that: 

  • AT&T uses its gatekeeping role to stifle innovations in voice telephony and control the way consumers access the internet
  • AT&T enables its partners to control the way consumers access the internet
  • AT&T‘s broader history of censoring speech and use of its network
  • AT&T’s past spectrum bids illustrate an unwillingness to embrace innovation and openness
  • The effects of increasing AT&T’s power as a gatekeeper by granting this merger would negatively effect consumers
  • T-mobile has had a postive role in encouraging competition by openness to innovation, while AT&T has not
  • The merger would negatively effect on consumers who rely solely on wireless broadband, by limiting the amount of carriers they can choose from.

Read the full filing by clicking here.

You can also read other public interest filings by our friends at Free Press and Public Knowledge.

New Media Rights is a non-profit project of the Utilities Consumer Action Network. We offer free legal assistance to creators and consumers on copyright and online publishing. We also offer a free public media studio, educational resources on technology and the law regarding people's digital rights.


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Wolk v. Kodak reinforces DMCA safe harbors

by Thomas Yohannan


Wolk v. Kodak Imaging Network, Inc., 2011 WL 940056 (S.D.N.Y. March 17, 2011)

Last month, a federal court in New York ruled on a case where an artist wanted to shift the burden of seeking out infringing works from herself to a website. Similar to the vein of a few hundred cases in the realm, the court decided in favor of protecting innovation.  


The case is a reminder that the responsibility of finding infringing works is up to the copyright holder, not the website.  A website that complies with the DMCA safe harbors is responsible for removing UGC (user-generated content) only if the copyright holder notifies them of the specific illegal content at that moment (a 512(c)(3) takedown notice).  It’s not responsible for future occurrences.  


Sheila Wolk is a creative visual artist.  You can see her creativity at work on her website -  After posting her work online, some of her work was uploaded to the website Photobucket without her authorization.  Ms. Wolk sent 512(c)(3) takedown notices to Photobucket. Photobucket complied with these notices and took down the material.   


However, Ms. Wolk became tired of sending these DMCA-compliant notices.  She sued Photobucket because she believed that the website should have known of the infringing acts based on her previous 512 (c)(3) takedown notices.  She contended that she was under no obligation to keep sending takedown notices.  The court sums up her position: "Plaintiff contends that Photobucket is now aware that her copyrights are being infringed on its site, and it must now police its sight [sic] to uncover current infringements and prevent future infringements, without her providing DMCA-compliant notice in each instance."


To date there have been a number of section 512 rulings on cases similar to Wolk.  The court seems to dispose of this case in rather similar and routine fashion.  Essentially, shifting the burden of policing the website for anything that breaks the law, particularly copyright infringment, would go against the public interest and defy the purpose of the DMCA which was “to facilitate the growth of electronic commerce, not squelch it.” Io Group, Inc. v. Veoh Networks, Inc.  


In a relatively short decision, the court found that Photobucket is protected by the “safe harbor” of the Digital Millennium Copyright Act and therefore can’t be sued for copyright damages.  The case is still technically ongoing, but it suggests as the Veoh and Viacom decisions before it, that those who bring copyright allegations must have a strong showing of “knowledge”or “red flags of infringement” to kick internet companies, such as Photobucket, out of the “safe harbor” of the DMCA. 


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New Media Rights at the National Conference for Media Reform

Update: We have audio of the NMRC session, available here:

We are looking forward to the National Media Reform Conference this weekend in Boston, MA. We are very excited to communicate and share with media creators, remix artists, media justice advocates, media literacy educators, media policy experts and thought leaders in media reform. We look forward to sharing the work we have done offering free legal resources and fighting to improve and modernize media policy.

We hope if you are going to be in Boston, MA you will come say hello to us, but if you can't make it there are great ways you can be involved from your computer at home.

Art will be on the panel Copyright, Copyleft, CopyCenter: Can Copyright and Remix Culture Co-exist?
Saturday, April 9, 9:00am - 10:30am EST

Hear from creators, activists and academics who are trying to find ways to make copyright work for artists. We'll discuss topics like fair use, DMCA takedown notices and sampling. Listen to artists whose work relies on their ability to reuse and comment on existing, copyrighted materials. We'll also discuss the ways that copyright is shaping and limiting the ways that musicians, poets, authors and video artists are creating new work today. Can modern remix culture and copyright co-exist? Come watch our panel of experts as they attempt to answer that question.

Update: Listen to the audio from the panel.


Join Mera on Live National Media Reform Conference Online Chats!

Share your ideas and input for these live chats by joining in at:

Friday, April 8, 4:30pm - 6:30pm EST

Better Media Starts Here: featuring Craig Aaron, Lawrence Lessig, Erin Gibson, Glenn Greenwald, Sarah Jones, Malkia Cyril speaking on the future of transforming media in America.

Sunday, April 10, 12:00pm - 1:30pm

Taking it Home: featuring John Nichols, Craig Newmark, Deanna Zandt and Craig Aaron amoungst others wrapping up the conference and what we can do moving forward.


Copyright, Copyleft, Copycenter: Can Copyright and Remix Culture Co-Exist?


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How online video is effecting the future of television and the internet

by Thomas Yohannan

We are in the midst of a shift in the way we consume video content.  Nielsen released its first set of online video metrics since June 2010.  With online video usage up a staggering 45%, our content is increasingly being delivered by online services.   Along with this continued change in our viewing habits, there is a continued change in revenue streams for video content.  We can delve into piracy and its potential effects on revenue streams another time. 

While consumers migrate to online services, the only paid subscription online service that is in the top 10 is Netflix (by total video streams and unique viewers).  According to Nielsen, the average U.S. video viewer spent 11 hours, 8 minutes watching Netflix content.  This is significant not only because web rivals such as YouTube and Hulu provide free (ad-supported) content but also because Netflix is growing at a faster pace than these companies.  The eyes have it.  Netflix will continue to alter the revenue streams of the television and film industries, and all of these services are causing shifts in the revenue models of traditional media.

The long term outlook of various media may change based on policy.  While ad-supported syndications are currently winning the battle for viewership in aggregate, Netflix or its next iteration may have better prospects.  For instance, if the U.S. adopts a usage based billing (UBB) for internet data then these statistics may reverse.  Currently, Canada is attempting to use UBB over its data pipelines, and the effort in Canada is being met with criticism.  With Netflix purportedly using 1/5 of the U.S. downstream traffic (as reported by Sandvine), policy will, as always, drive strategy, though hopefully policy can avoid picking winners and diminishing competitive choices in the online video space..  

Amazon may pose a threat to the Netflix model.  In its latest 10-K, one of the ‘risk factors’ that Netflix mentions is the outsourcing of a huge portion of its operations to a division of Amazon called Amazon Web Services (AWS).  As the filing states, “Given this, along with the fact that we cannot easily switch our AWS operations to another cloud provider, any disruption of or interference with our use of AWS would impact our operations and our business would be adversely impacted.”  With Amazon poised to offer movie streaming via Amazon Prime, Netflix’s lofty expectations and revenues may take a hit.

All of this growth in the online video space runs parrellel to the steady loss of video customers disrupting Internet Access Provider’s business models(Comcast lost video customers for the 15th straight quarter; Time Warner Cable – 7 straight quarters; and Cablevision – 2 straight quarters).  

Advertising for these companies are back to mid-2007 levels because video streaming is upsetting it.


The convergence of television and the Internet will continue to move forward, and it will be important to make sure that on the other side of the change we have actual competition in the online video space, as well as an open and competitive internet.


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New Media Rights shines light on the importance of Sunshine Week and access to public information

The latest issue of San Diego's CityBeat featured New Media Rights and three projects featured at Drumbeat San Diego, in its article "Light of the day". The article highlighted our advocacy work which includes legal assistance and advocacy for access to public information, just in time for Sunshine Week. Sunshine Week takes place between March 13-19. Organizations around the country emphasize the importance of the right to information and the right to know during this week.


New Media Rights supports access to public information by assisting individuals and groups in submitting PRA & FOIA requests. In the article Art Neill, Director of New Media Rights mentions, “We’re always willing to help bloggers and citizen-journalists with Public Records Act (PRA) requests. PRA and FOIA [Freedom of Information Act] requests are not extremely difficult, but there really is a nuance to getting them done." If you would like assistance in getting access to public information via an FOIA or PRA request, contact us.


New Media Rights will also be creating a guide in the upcoming weeks answering questions we have received over the years regarding PRA & FOIA requests, so we invite you to send us questions that you would like answered in this guide, below in the comments, or email us at

We also support the work of the Government Accountability project through the Make It Safe Coalition (MISC) and our advocacy for the Whistleblower Protection Act. Drumbeat San Diego also highlighted several projects that support civic participation and access to open data. You can find details about the projects on the Drumbeat San Diego agenda.


A Knight Foundation-funded survey published on March 1, 2011 found, “Citizens who believe their community's information systems, government, media and such are performing well are more likely to be engaged in their community and are more satisfied with the quality of their community as a whole." Civic Participation is so valuable to our communities and to our lives, please make an effort during Sunshine Week to get more involved in your local community.


If you are interested to see what the government is doing on a federal level, on March 15, Senate Judiciary Committee Chairman Patrick Leahy is holding an oversight hearing titled "The Freedom of Information Act: Ensuring Transparency and Accountability in the Digital Age". The event will also be webcast live here.


Get involved and learn more about Sunshine Week by exploring these links and finding a way to support their efforts.

Work of our friends and allies:

Open San Diego

Citizen Oversight Projects

Instant Impact

Access Humbolt, community media center to create video messages for Sunshine Week


Sunshine Week Resources:

FOIA Letter Generator

Sunlight Foundation: Sunshine Week Round up: A look at state-based events

Sunshine Week website

Sunlight Foundation Data Transparency Projects

"ROW@CASTEL_DEL_MONTE_MG_5222" by *sdp* Flickr user shared under Creative Commons Attribution-NonCommercial-ShareAlike 2.0 Generic (CC BY-NC-SA 2.0)

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The FCC Chairman & the US Broadband Spectrum

By Thomas Yohannan

The theme of this year’s Consumer Electronics Show (CES) was any content, anywhere, anytime, and on any device.  It is CES, so you could expect that every company was showing off their new models from tablets to 3D TVs.  This year’s darling was the tablet, with the Motorola Mobility's Xoom and Research In Motion's Playbook garnering the most attention.  The best in show went to the Motorola Altrix.  With the major national carriers racing to launch 4G devices, including HSPA+, LTE, and, in Sprint's case, WiMAX devices, there continues to be a growing importance of the wireless spectrum in the U.S. economy.  Innovation is not only needed for the devices, but for the network on which the devices rely.  

The CES Friday conversation between FCC Chairman, Julius Genachowski and the Consumer Electronics Association (CEA) CEO, Gary Shapiro was about the need for a broadband mobile infrastructure.  “The consumer electronic industry is going wireless,” said Genachowski, citing a projection that anticipates growth by a factor of 35 in the coming five years for mobile broadband use.   For the U.S. to continue to be competitive, Genachowski said he hopes to foster an ecosystem which will house the “world’s best innovation. “

The past few years have seen a massive growth in the popularity of mobile devices, including smartphones, tablets and other connected devices.  While these devices are the locomotives of the broadband industry, the rails on which the devices operate must also necessarily expand.  As he has said before, Genachowski wants to free up spectrum as well as update spectrum policies.  The Chairman thinks the U.S. must not only start moving to make these changes, but that it must move faster than other countries to maintain our technological lead.  A primary way in which he hopes to accomplish this is by implementing incentive auctions.  Incentive auctions would allow TV broadcasters to sell unused spectrum, which would be used for mobile broadband purposes.  However, Congress will need to authorize the FCC to begin such auctions.


There is much to be done, but there has been at least some progress.  In March, the agency announced its National Broadband Plan which details what needs to be done to expand broadband access to all Americans.  The FCC also  voted to open up empty broadcast TV spectrum to help bring about a next-generation wireless broadband technology it’s calling “Super WiFi.”  It’s promising to see the FCC’s interest in fostering growth, but entrepreneurs and innovation will ultimately decide how long it will take to get any content, anywhere, anytime, and on any device.


"Television transmission tower" shared by Flickr user woodleywonderworks under a Creative Commons Attribution 2.0 Generic

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Open Attribute, a simple way to attribute Creative Commons licensed works on the web

Open Attribute - Creative CommonsA big shoutout from New Media Rights to the entire team that has put together OpenAttribute

OpenAttribute simplifies the process of attributing an openly licensed piece of content, by providing a quick link where you can get an HTML or plain text attribution. Paste this code or plain text whereever you are reusing the Creative Commons licensed work, and you can have a properly formatted attribution.

I encourage you to go install this right away and start improving your attributions today!

Back in Barcelona at the Drumbeat Festival in November, I happened to be part of the small breakout group with Molly Kleinman and Jane Park that identified the continuing problem of proper attribution of openly licensed works as a huge barrier to everyday content reuse.

In the months following Drumbeat Festival, Molly Kleinman, Nathan Yergler, and and many others have built an amazing team of individuals who lent their skills and turned that idea into a practical, useful application.  This is another testament to the community and power of the open web, and I want to thank you all for building this useful application. 

This project is a great step for improving attribution for content reuse on the internet.


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For Promotional Use Only: Promo CDs freed for resale

By Thomas Yohannan


For Promotional Use Only – Not for Resale


For Promotional Use Only – Not for Resale.  If you’ve ever listened to a promotional CD or LP (yes, they still do exist), then you’ve probably seen that phrase stamped on the front label.  By stamping the phrase on promotional records, record companies believed that the copyright laws were being preserved.  Copyright holders have battled in court to try and limit  the scope of the ‘first sale doctrine,’ which gives us the right to resell the physical copies of albums we own(and books and other copyrighted works), so that it wouldn't apply to promotional records.

The ‘first sale doctrine’ says that once you buy a book or recording then you can do with it as you’d like as long as you don’t copy it.  For example, a CD can be lent, borrowed, sold or given as a gift to your beau.  Copyright holders despise this because it takes out all the economics of the recording after the initial sale.  It also creates competition through the secondary market.  Instead of having a multitude of buyers, there may only be one initial buyer who offers the product to others.  Libraries and their books would be illegal were it not for the first sale doctrine.  This is an ongoing debate.  In 2008, the courts upheld the first sale doctrine by saying that, based on the circumstances, promotional records are owned and not merely licensed out so recipients can do with them as they wish.  

This month, in the case of UMG (Universal Music Group) v. Augusto, the Ninth Circuit Court of Appeals in San Francisco, CA ruled that the sale of promotional records does not violate copyright laws.  UMG filed a lawsuit against Troy Augusto in 2007.  The Electronic Frontier Foundation’s Senior Staff Attorney Fred von Lohman took up his case and described the circumstances as such:


"Troy Augusto makes his living basically doing the age-old thing. He buys low and he sells high. He goes to Los Angeles-area record stores, he finds CDs that he recognizes as being collectable, valuable to a certain set of fans, picks those up and resells them on eBay for, he hopes, a profit. And it appears that major record labels — not just Universal — they object to certain promotional CDs being resold. For those auctions on eBay, the labels will send notices to eBay to try to stop those auctions. And Mr. Augusto has, to his credit, stood up for his rights and said, hey, I'm entitled to sell these. I own them. I bought them fair and square. You guys gave them away. The First Sale Doctrine ought to apply."


There does continue to be some confusion in the law where licensing intersects with software.  In September 2010, the same court ruled in Vernor v. Autodesk that software companies can restrict your ability to resell a program.  


That said, this case is a victory for resellers that restricts copyright right owners from simply slapping a notice on a work and trumping your rights to resell the physical copies of a work that you purchase under the first sale doctrine.


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Drumbeat San Diego organizing meeting tonight, January 12, 2011!

We're having an organizational meeting for Drumbeat San Diego tonight at the NMR offices.

Come and help us plan logistics and outreach for the next few weeks.  Also learn about, and shape the exciting sessions that will be at Drumbeat San Diego!

What: Drumbeat organizing meeting

Where: 3100 5th Ave Suite B, San Diego, CA 92103

When: January 12, 2011

For the latest on Drumbeat, including an updated agenda, see these links!



Invitation to Drumbeat San Diego

Also, attached below is a copy of a Drumbeat flyer you can share with groups and individuals who may be interested in participating.

Drumbeat poster.pdf2.57 MB

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