Google’s much talked-about new privacy policy went into effect this week, not surprisingly with a measure of controversy. Days before the policy went into effect worldwide, the
EU tasked the French government’s privacy agency to ascertain whether Google’s privacy policy violated new EU privacy law. Should the French agency find Google’s policy to be illegal, it has the power to both fine Google and to seek an injunction against its implementation of the new policy.

AT&T Caught Throttling, and Gets Throttled:

After AT&T switched to a tiered pricing model for mobile data plan, it assured existing customers with an unlimited plan that their buffet of gigabytes “grandfathered” into the new policy. They may not have made clear, though, that these grandfathered customers would get data at octogenarian speeds after meeting certain data usage thresholds (reportedly as low as 1.5 GB). Earlier this week, one such customer won a judgment in small claims court against AT&T for $850. This piece outlines how other aggrieved customers may make out a similar claim.

Apple’s Market Success (and Trademark Trouble):

This week, Apple recently achieved a market cap of $500 billion, putting it in rather exclusive corporate company–only four other companies have ever surpassed the mark. Followers of corporate governance may note that this news comes on the heels of the failure of shareholders to institute a majority vote requirement for the election of directors. Meanwhile, Proview, the Chinese electronics company claiming trademark rights in the “iPad” name, has taken its legal battle with Apple to American shores, filing a complaint
in California Superior Court.

LightSquared, Dimmed:

LightSquared, the broadband wireless venture which has struggled with regulatory approval from the FCC, had a shake up in leadership this week when its CEO resigned. Congressional Republicans have criticized the FCC for its regulatory treatment of LightSquared’s proposed use of satellite spectrum. Hoping to overcome regulatory hurdles, the company is now eyeing a potential CEO with experience navigating the halls of the FCC.

SOPA/PIPA’s Epilogue:

In the wake of the apparent defeat of SOPA and PIPA, Public Knowledge has released “The
Internet Blueprint,” which aims to inform lawmakers on how to craft better legislation regulating the Internet. At the same time, Redditors try their hand at crowd-sourcing the
drafting of a SOPA/PIPA alternative.

Murphy had installed a Greek satellite company’s decoder card in her pub’s satellite TV system, allowing her access to the Greek telecasts of EPL games. As a result, her pub could show live soccer games at three in the afternoon–something other pubs, subscribing to English broadcast rights-holders Sky Sports and ESPN, could not offer. Sky/ESPN are obligated by their license with the EPL to black out EPL games played from 3-5 PM, a practice aimed at keeping fans in the stadiums instead of the bar stools and sofas across England.[1]

In addition to depressing attendance at matches, the use of foreign decoder cards strikes at the very foundation of the EPL’s broadcast business model: using a foreign decoder allows pub owners to get access to their soccer content at a fraction of the cost of domestic decoder. A public display subscription to domestic service costs a pub about $747 per month, whereas a subscription to NOVA (the Greek satellite provider) costs a fraction of that amount, about $184 per month. The ability to charge English subscribers a premium for their own domestic content has allowed the EPL to sell its domestic broadcasting rights for about $1 billion a year.[2]

This week’s ECJ ruling cut to the core of this business model: they ruled that the national law that made the use of such foreign decoder cards illegal was “contrary to EU law” in that it hindered a “completion of the internal market” for goods or services. Publicans like Ms. Murphy can thus no longer be stopped from (or fined for) ordering and using foreign decoders in their satellite receivers. They furthermore ruled that the EPL cannot circumvent these rules by inserting terms into their license agreements which would prevent broadcasters from selling decoders outside of their licensed territory. The scheme by which the EPL and its partners were able to extract a premium from English subscribers, according to the court “cannot be regarded as forming part of the appropriate remuneration” that rights-holders are due. In yet another potential blow to the EPL (and sports leagues throughout Europe), the court said (in what is likely dictum) that the EPL “cannot claim copyright in the Premier League matches themselves, as they cannot be classified as works” within EU copyright law. The ECJ said that only the anthem, on-screen logos, and other visual elements added by the EPL could constitute copyrightable works.

So what is the EPL to do? Its whole raison d’etre is to leverage the value of bundling the broadcast and sponsorship rights to top-flight English soccer and offer them to the highest bidders. The League took some comfort in the ECJ’s finding that the unique visual elements that the EPL tacks onto its broadcasts are subject to copyright protection. As a practical matter, this seems to be rather slight solace: once it is legal for the bartenders to buy and use these decoders in their pubs, preventing them from showing the part of the broadcasts that feature the League anthem or the League’s iconic logo seems like a chore indeed. As a legal matter, it would seem rather illogical for the EPL to be able to circumvent competition law by copyright protection what it cannot get through contract. As soccer commentators are apt to say in a close match, there is still “all to play for,” as the English court on remand might take a more favorable stance on the copyright issue and thus give the EPL the result they seek.