February 2006 Archives

Net Neutrality Reading List

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If telecom and cable companies have their way, a new Telecommunications Act will allow them to create preferred tiers of service. The cable and telecom companies argue that this is the only way to make voice over IP and streaming media services sufficiently reliable to compete with traditional telephony and broadcast/cable/satellite.

Allowing preferential treatment will end the democratic experiment of the internet. Publishing online lowers the barriers to entry and promotes both creativity and free speech. A tiered internet service favors established interests over individuals. Such a plan could make it difficult for individuals to engage in broadcasting or publishing rather than simple communication.

This issue means more for the future of the internet than the price. It could affect the way that networks are linked together. To make the public interested in this issue before legislation passes, I fear that the proponents of network neutrality need to find a better term than the technically accurate, but un-sexy "network neutrality" to gain substantial public support. Perhaps "the freedom to connect"?

Here are some links about the fight over the future of internet access in the US.

In the NY Times, Randall Stross writes: Hey, Baby Bells: Information Still Wants to Be Free - New York Times: "For one thing, the occasional need for a preferential fast lane for streaming video - that is, moving pictures displayed as fast as they arrive, rather than downloaded first and played from memory - exists in the United States only because our standard broadband speeds are so slow. Were we ever to become a nation with networks supporting gigabit service, streaming video would not require special handling."

Lawrence Lessig: the fiction zone that DC has become "Broadband is infrastructure — like highways, if not railroads. If you rely upon “markets” alone to provide infrastructure, you’ll get less of it, and at a higher price. (See, e.g., the United States, today.)"

Susan Crawford: Rhetorical legerdemain "But it has finally become clear to me that the telephone companies are planning to ensure that subscribers never see “the Internet” at all over these high-speed connections. Instead, subscribers will see the “broadband video” offerings of the network owner, to which particular paying web sites and paying VoIP services have been added. They’ll be able to access “information derived from the Internet,” in the words of the bill, but not the internet itself. Only those willing to pay for slower access speeds (and perhaps willing to pay more for these slower speeds than for the high-speed access) will be seeing “the Internet.”"

Susan Crawford: Framing: "The debates over the future of the internet should begin (although they hardly ever do) by answering the question What Is The Internet?"

Adam Pennenberg, Slate: Internet Freeloaders: Should Google have to pay for the bandwidth it consumes? "If the telcos and cable companies get their way, we'll have a Balkanized Web. Content providers who can afford to pay for premium service will market superior products to consumers with fast connections. Everyone else will make do with second-class companies at second-class speeds."

Preston Gralla, Networking Pipeline: Google: We Won't Pay Broadband Cyberextortion: "The BellSouths and Verizons of the world should focus on offering better services at lower prices -- not trying to fine-tune the Tony Soprano business model. That's been tried already, by a company you may have heard of, called Enron. And look where it got them."

Ed Felten: How Would Two-Tier Internet Work? "I should say up front that although the two-tier network is sometimes explained as if there were two tiers of network infrastructure, the obvious and efficient implementation in practice would be to have a single fast network, and to impose deliberate delay or bandwidth throttling on non-preferred traffic."

Daniel Berninger: Net Neutrality Not An Optional Feature of Internet: "The Internet does not exist without net neutrality. Consider the misleading assertion that tinkering with network neutrality simply amounts to adding class of service as in the case of air travel or HOV lanes on highways. Network neutrality refers to the uses of the Internet not the quality of access. There already exists an infinite range of classes of service as regards Internet access. End users pay for what they get regarding the performance and capacity of Internet access. Internet content and service providers like Google, Amazon, and Vonage already pay for access to the Internet."

Paul Riismandel, Media Geek: The Future of the Internet Is on the Table: "I think the very ability for independent media makers to continue to use the internet to easily and inexpensively distribute their works is in jeopardy. AT&T and Verizon want to charge content providers for the data they send to their customers’ computers, even though content makers, like me, already pay for our own internet access in addition to the fees to host our content on servers."

Net Freedom Now!

Jef Chester, The Nation: The End of the Internet? " If we permit the Internet to become a medium designed primarily to serve the interests of marketing and personal consumption, rather than global civic-related communications, we will face the political consequences for decades to come."

Virtual Karma: Dad, What Was Internet? "Wait. I’m all confused here. We paid for our end of the bandwidth and the websites paid at their end. So who is getting a free ride here?"

AP: Building the Internet Toll Road: "On the internet, the traffic cops are blind -- they don't look at the data they're directing, and they don't give preferential treatment."

Christopher Stern, The Bergen Record: Roadblocks on the super- highway: "The changes may sound subtle, but make no mistake: The telecommunications companies' proposals have the potential, within just a few years, to alter the flow of commerce and information -- and your personal experience -- on the Internet. For the first time, the companies that own the equipment that delivers the Internet to your office, cubicle, den and dorm room could, for a price, give one company priority on their networks over another."

Practice makes perfect

Some thoughts relevant for considering career choices:

Ron Baker, the [non]billable hour: Attorneys Aren't Knowledge Workers: "When you consider the metrics used by most firms to measure their team members, they all come from the Industrial Revolution's command-and-control hierarchies (realization, utilization, billable hours, etc)."

Douglas Rushkoff: Fun AT Work vs Fun AS Work: "By making the "fun" at work extraneous - external and unrelated - to the boring and dull work that people are actually doing, it only exacerbates the problem. It's like giving kids dessert as a "reward" for finishing the main part of the meal. Why do they need a reward? Because the main meal tastes terrible!"

Jill's Notebook: After the law firm "After working for the law firm, I learned that it might be wise to be wary of organizations bottom-heavy with young, energetic people and run by a few older people with a lot of money and/or power."

Quick Hits

Here are some links of interest from the last few weeks:

Digital Audio Insider: "Digital Audio Insider is a blog about online music distribution (and the listening experience), from the perspective of an indie musician."

American Library Association: Digital Rights Management: A Guide for Librarians

Mediageek: News and views on our media environment. A blog and podcast.

Wired News: They Saved the Internet's Soul Looking back on the internet, 10 years after the Communications Decency Act and Reno v. ACLU

Patently Obvious: PTO Requests Model of Warp Drive Invention

David Sirlin, Gamasutra: World of Warcraft Teaches the Wrong Things: "1. Investing a lot of time in something is worth more than actual skill. If you invest more time than someone else, you "deserve" rewards. People who invest less time "do not deserve" rewards. This is an absurd lesson that has no connection to anything I do in the real world."

John Ottaviani (with Eric Goldman), Technology & Marketing Law Blog: Top Cyberspace IP Cases of 2005

Gervase Markham in the Times (London): Free software? You can't just give it away: "I can't believe that your company would allow people to make money from something that you allow people to have free access to. Is this really the case?"

AP: Minnesota Public Radio sues Gore-founded Internet TV network: "Minnesota Public Radio is suing an Internet television network co-founded by Al Gore, claiming the network's alternative and amateur news reports interfere with MPR's trademark."

Yahoo Music Blog: Dave Goldberg to Record Labels: No DRM, Please: "By now you’ve probably seen the news that Yahoo! Music’s General Manager, Dave Goldberg, urged record labels to ease back their insistence on DRM…

Richard L. Hasen, Slate: Fraud Reform? How efforts to ID voting problems have become a partisan mess. "Unfortunately, election reform is becoming mired in partisan politics, and the resulting rules changes are increasing, rather than decreasing, the chances of future litigation and election meltdown."

Rebecca Tushnet, 43(b)log: Richard Epstein on the Google Print Library ProjectPart 1 and Part 2.

47 USC §230 Year-in-Review

Eric Goldman looks at last year's cases involving the statutory "safe harbor" protection for web sites sued for user-created content. Technology & Marketing Law Blog: 47 USC 230 Year-in-Review (and Landry-Bell v. Various, Another Defense Win): "So, according to my tally, in 2005 there were 10 defense wins under 230 and 1 plaintiff win. And even the sole plaintiff win wasn't dispositive--the court refused to grant a motion to dismiss based on the factual allegations, but the 230 defense could still apply after discovery."

Perfect 10 v. Google

In Perfect 10 v. Google, Inc., 04-9484 (C.D. Cal, Feb. 17, 2006), US District Judge A. Howard Matz ruled that "Google's creation and display of 'thumbnails' likely do infringe P10's copyrights. The Court also concludes, however, that P10 is not likely to succeed on its vicarious and contributory liability theories."

The court adopts the "server test" for judging whether a web site infringes on the copyright owner's display right: Direct linking to an image file does not infringe upon the display right. Serving it from one's own server does infringe.

The finds that Google Image Search does not engage in fair use when it creates thumbnail images of P10 files that are freely available on the web, as the result of infringing acts of third parties. Perfect 10 has a commercial interest in thumbnails-- it has licensed thumbnails to a mobile phone service. This is the deciding factor in distinguishing Google from Arriba Soft. Kelly, the plaintiff against Arriba Soft, did not have a commercial interest in thumbnail images. Here, because P10 executed a licensing deal to make money off of thumbnail images for a mobile service, that Google's image search was not fair use, because P10 established that it had commercial interest in thumbnail images.

In its ruling granting a preliminary injunction, "P10 has established a likelihood of success on the merits that creating and serving thumbnail images does directly infringe P10's copyrights."

In deciding that Google is not contributorily liable for facilitating infringement of P10 images, the court differentiates Google Image Search from Napster, finding that Google only resembles Napster in facilitating searching. Napster also facilitated file transfer from otherwise unaccessible hard drives. Google helps searchers locate "information (text, images, video, newsgroup discussion threads, blogs, academic papers, price information, maps, driving directions) found on the entire, publicly available web."

The court ruled that Google is not vicariously liable, because google lacks sufficient control over the web for vicarious liability. "Google does not exercise control over the environment in which it operates-- i.e., the web. Google's ability to link from its search index does not render the linked-to site inaccessible.… If the phrase 'right and ability to control' means having substantial input into or authority over the decision to serve or continue serving infringing content, Google lacks such right or ability."

William Patry: Google Nudes: "The court's fair use analysis and its attempt to both follow and distinguish Kelly v. Arriba is disappointing, a bit of a tally up the factors and see who has more (Plaintiff 3, Google 0, a draw on the third factor)."

William Patry: Google Nudes II: "In considering Google's use also "consumptive," I think the court erred significantly, and not only for the reason given yesterday (the markets are different): the harm from cellphone downloading, even if real (I can't imagine it is), occurs only with English users. I don't see how that is relevant in a U.S. case."

Fred von Lohmann, Electronic Frontier Foundation: Perfect 10 v. Google: More Smooth Than Crunchy: "While you wouldn't know it from the headlines, I think yesterday's preliminary injunction ruling against Google will be remembered as a little bad for Google, but a lot good for the Web."

John Ottaviani, Technology & Marketing Law Blog: More on Perfect 10 v. Google: "Leave it to the porn industry to make copyright law on the Internet.… It seems like the court took reasonable and defensible positions here in applying 1970's copyright law to Google's 21st Century Internet practices. Also, Google is not Napster, but once again we see the risks of basing one's business, or part of one's business, on the "fair use" defense. "

C.E. Petit, Scrivener's Error: Cassandra Was Here: "There appear to be four fair-use factors—just not the four specified in § 107. To begin with, the first and fourth factors (broadly, the "commercial necessity" factors) generally get conflated and weighed as at least half of the fair use equation. P10 v Google is an excellent example of this; Judge Matz's decision is a classic example of counting the same "facts" twice in his analysis of the first and fourth factors. What this basically says is that, with only very rare exceptions, the first and fourth factors will point the same way anyway. It also gets into the "fifth fair use factor"—the one that the Copyright Office's Orphan Works Report didn't quite acknowledge was driving the entire inquiry: administrative convenience."

Wendy Seltzer: Google Wins Some, Loses Some, in First Round versus Perfect 10: "Yesterday, the California Central District issued an order (local copy) that's a mixed bag, but gets a lot right in its description of how copyright works on the web."

Xenia P. Kobylarz, Law.com: Perfect 10 Racks Up Preliminary Injunction Against Google: "A Los Angeles federal judge ruled Friday that the Internet search engine's image search feature, which displays thumbnail versions of images found on other Web sites, probably infringed a Web pornographer's copyrights."

LA Times: Google's image search set back: "If upheld, the judge's preliminary ruling could throw a kink into the way Mountain View, Calif.-based Google collects and displays photographs in the image portion of its search engine. Lawyers not involved with the case said it would have little effect on Google's overall business, which generated $6.1 billion in revenue last year."

Martin Schwimmer, The Trademark Blog: Perfect 10 Obtains Injunction Against Google's Use of Thumbnail Images "The thought occurs as I read this section that Google makes this go away by cropping a corner off the thumbnail (or perhaps reproduces thumbs using sepia tone)."

NY Times: Ruling May Undercut Google in Fight Over Its Book Scan: "Representatives of publishers and authors who have filed lawsuits against Google over its Book Search program said they believed that the decision raised questions about a case that Google had cited in its defense of the Book Search program."

Michael Madison: District Judge Scores a Perfect 10: "I read the judge as concluding that the public interest in having free access to Perfect 10’s photos is less than the public interest in having access to Les Kelly’s photos. In other words, Perfect 10 has done more than Les Kelly did to make the photos into mere commodities, but precisely for that reason there is no reason to make them more widely available than they already are."

William Patry: Preliminary Injunctions and Affirmative Defenses: "One issue in the Perfect 10 v. Google, Inc. case was whether Perfect 10, in seeking a preliminary injunction, bore the burden not only of establishing a likelihood of success on its prima facie case, but in also establishing it was likely to overcome any affirmative defenses Google asserted, in that case fair use. Judge Matz, following the district court decision in the Dr. Seuss case, held that Perfect 10 did bear that burden. The opinion, however, missed contrary authority, and perhaps most importantly, understandably did not discuss a Supreme Court opinion handed down the same day (February 21) that held to the contrary."