Telecom has long been a regulatory and legal hotbed. In the U.S., the industry featured AT&T, a company that was regulated as a natural monopoly beginning in 1913 and has been in the process of deregulatation since the Consent Decree of 1984. During the latest term of the U.S. Supreme Court (SCOTUS), which ran from October 2013 to July 2014, some rulings were handed down about privacy, Net Neutrality, and other matters that should alter the shape of the telecom landscape moving forward.
• LIMELIGHT NETWORKS, INC. v. AKAMAI TECHNOLOGIES, INC., ET AL. continued the wrangling over method patents held by MIT, and licensed exclusively to Akamai. Questions of patent infringement, and inducing activities that might cause infringement (either directly or indirectly, or even potentially) will quickly dull the senses of all but the most able lawyers. In the end, the court sent the case back to the lower courts for reconsideration, stating that Limelight was not liable for inducing infringement (because a third party, their clients, performed only the tagging function identified in the patent) and refused to consider issues related to direct infringement because the plaintiff did not address the issue in their statements before the court.
VERDICT: POSSIBLE EMERGING TOPIC: The patent law is not going to change the telecom market landscape, but SCOTUS seems prepared to have courts decide issues related to technologies that grant access to CDN (Content Delivery Network) capabilities – the enigmatic fast lanes of the Internet at the center of most Net Neutrality discussions. This could be an area to watch for the future.
• RILEY v. CALIFORNIA centered on smartphones and the right to privacy. The defendant asserted that evidence obtained by searching a cell phone seized at the time of arrest constituted a warrantless search, and the court agreed. The exception granted to search the person or vehicle of a suspect at the time of arrest (which is really more the norm, not the exception) was held to be correct and legal only to protect the safety of others, or to prevent the destruction of evidence. SCOTUS felt that a freewheeling and far reaching search through the contents and connections of today's smartphones was a significant invasion of privacy. The court believed that most people cannot and do not carry around their mail, their photo albums, their library, etc. --nor would they have any reason to attempt to do so. If someone did, they would have to drag behind them a large trunk - the sort of thing that requires a warrant to search today, and so searching a cellphone does as well.
VERDICT – INTERESTNG: SCOTUS has explicitly said that advancing technological capabilities do not reduce a person's reasonable expectations of privacy. Will this ruling be extended to impact the use of video surveillance data, cloud-stored information, and electronic trails inadvertently left by hyper connected devices like Google Glass which could easily and surreptitiously be used to invade personal privacy?
• AMERICAN BROADCASTING COS., INC., ET AL. v. AEREO, INC. revolved around the legality of Aereo's business model. Aereo enables subscribers to tune remote antennae to capture over the air television broadcasts, which are then sent to their in-home receivers over the Internet. SCOTUS held that this retransmission constitutes a public performance, a right explicitly granted only to the copyright holder of the content. The company strongly believed that they were simply enabling cloud-connected antennae to extend the reach of the broadcast TV to people who did not want to install, maintain, and adjust antennae. Because they so fervently believe that they are simply offering Antenna as a Service (AaaS), they have very publicly stated that they will cease to operate and exist, as they have no alternative or secondary plan.
VERDICT - INTERESTING: The court is ruling on what content can be delivered over what network, asserting that network fair usage is the purview of regulators, lawmakers and courts. Net Neutrality supporters assert that this is an unlawful extension of broadcaster's rights, and is further limiting competition in the market for delivery of home entertainment. Broadcasters see this as simply protecting their property and assets – the content that THEY deliver.
