April 2006 Archives

Siva Vaidhyanathan
1. Copyright touches more, but protects less than ever before. (see e.g. pirated DVDs on Canal St.)
2. How night we insure how (c) can protect investment and still protect speech
3. To what extent can we rely on fair use. Is it the best vehicle for protecting speech when it's really only an american thing.

Allan Adler (Assoc. of American Publishers)
Overclaiming. There's been a lot of overclaiming about the difficulties that fair use poses to culture and overclaiming about the problems of the public domain.

In the world of Washington, (c) is synonymous with Hollywood. In terms of political baggage, it carries a lot of negative connotations that makes DC people uncomfortable and spills over into their view of copyright. Publishers are thought of a backwater industry that hasn't adopted new technology and not as the original reason for copyright. Forget that publishing is a promoter of speech values.

In DC, we usually think of copyright only in terms of the film (and occasionally record) industry. (c) protects the value of original creative expression. Fair use isn't merely protecting the convenience of someone who wants to put his cd on his ipod.

Fair use per se? If all educational uses are free, what happens to the textbook market? Right of access to a particular copy in the format of choice? Where does that come from-- Congress has never said that and the courts have explicitly rejected that (Universal v. MP3?) These are interpretations that have no foundation in law, public policy or original intent of copyright law.

Now we hear about fair use in Congressional hearings about making a copy of a new CD to provide to the 20 people on the x-mas list. They're not competing with the seller and introducing it into the market-- but fair use was never about that, either.

Lessig talked about a lot of heavy words-- consumer, culture. Publishers rely a great deal on fair use.

Lots of talk about the problems with DMCA, but the DVD wouldn't exist if not for the DMCA. We have this flood of culture because of all the economic incentives. There is a torrent of creativity because of all the economic value there.

US can no longer support its economy solely on manufacturing. Most of our jobs are the direct result of IP law. NYC is the capital of book publishing. We're in a school of journalism. How can you get a job as a journalist without the protection of copyright?

If some (c) owners go too far in protectionism, it's not that much of a big deal.
The anti-copyright movements haven't taken off, because most Americans really only care about consuming and most people are satisfied by what the marketplace offers. The marketplace allows consumers to make choices. If you ask the gov to step in an regulate, you're not going to like the results.

Should Congress rewrite fair use to make it more specific, and all said no. Some because they want to rely on the flexibility to be able to invoke fair use perhaps in some cases where it didn't fit the original intent of the drafters; others because they don't want to grant away specific rights.

Ultimately, fair use is not going to change too much. Our perceptions of it may evolve, but there is no momentum DC to rewrite the law. What we need to start doing is look at these differently to recognize that there is a tremendous diversity of interests involved here. There may be no definite resolution, but the flexible fair use concept seems to work well today (And this flexibility keeps DC lobbyists in business ;)). This will continue to be rewritten as technology advances, while Congress and the courts lag behind the tech. Gap between original intent of the law and the way it works in practice may not be bad.

Hugh Hansen (Fordham Law)
There's really nothing going on in fair use on the international level. People who want more access would love to have it. In the civil law countries, rights are written affirmatively into the law-- no flexibility.

law here is flexible and driven by judges. This is much more protective of free speech than the code countries.
The controlling mechanism of copyright is in courts, not in COngress.

The law hasn't changed as much as the behaviors enabled by technology. New technology reallocates the transaction costs. Technology doesn't sit on one side of this debate.

The only people with worse PR than the record industry is the Taliban. We have music publishers who take pride in the fact that they won't license for the internet. On the other side, Richard Stallman jumps up at a conference and says that everything should be copied. It's very easy to use anecdotes to get things on your side. Shouldn't the martin Luther King estate be allowed to refuse to license to skinheads?

Just grow up and deal with it. Some industries (particularly documentary films) need protection, but generally, the small creators sitting in a small lifeboat in a digital sea don't really get affected by the law [until they get sued, that is]. But the market generally works pretty well.

What we tend to do is polarize that all good is on one side, but that's not really the case. The trouble with smart people-- particularly economists-- is that they often don't have any judgment. Publishers are generally adverse to litigation because it's really expensive.

Access to information is great. Rejoice in it. There may be problems, but they are not so dramatic that we have to change the whole system.

Vaidhyanathan (to Lessig): As an academic, you've stated that fair use is a distraction from thinking about how (c) works in the perfect world, but as an advocate, you assert fair use as a defense in the Google Library case. Can you envision a better regime for user rights? In ten words.

Lessig: Is there a tension? my view is that the system is not functioning well, because we are all asking the wrong questions. The academics should look at the bigger picture. But as advocates, we use the tools we ahve available. Those who say that there is no problem out there don't get all the prospective cases that we do at the Stanford clinic.

The practical problem is that the middlemen in the process realize that lawyers are expensive and are rational to take a conservative, risk-averse position, so the actual bounds of fair use in practice are less than the extent in the law.

Hugh talked about the disconnect between non-commercial and commercial uses. Lessig wants the non-commercial uses to be legal. That would change the way we can teach. It's legal to create something in a classroom that mixes the works of Shakespeare and Hemmingway, but its copyright infringement to create something in the same classroom that mixes the works of George Lucas and Alfred Hitchcock. We should encourage this creativity instead of saying that its criminal, but it won't be prosecuted.

Vaidhyanathan (to Adler): Is there an underappreciation of fair use by your clients (the publishers)? Many authors quote other works, but it's their own publishers who insist on expensive clearances (borne by the author) instead of relying on fair use?

Adler: Publishing industry is tremendously risk averse. Letters are often written not because of what the publisher thinks, but because of what the authors think. Some authors don't want their works to be exerpted and taken out of context.

Maybe the law would be better if people tried to use it more and don't worry so much about getting sued. Does a film studio or record label really need the publicity that would result from suing a sixth grade class. There are very few federal court decisions on fair use.

Vaidhyanathan: but there are.

Adler: There may be lawsuits or demand letters, but not decisions. There are very few decission. If you stand up in court to defend fair use, that's how revolutionize the law. There's been no champion for fair use in the court.

Vaidhyanathan: Should we have moral rights protection here (ala King estate example)? If we had it here, how would that affect fair use?

Hansen: It's generally the heirs [link to Miro/Google] who don't have to work as artists again who assert moral rights.

Publishers are very conservative. Lessig had the problem when dealing with his publisher. His publisher told him that he couldn't quote as much of an article by Courtney Love as he wanted to, but he (the He
The reality is there is a middleman who decides what right you'll stand up for-- it's a sound business decision.

Audience Question: Should we establish a statutory rate for fair use quoting? It works well for record labels when dealing with music publishers for recording cover songs. (§115)

Adler: You could go in that direction if you want to let the trains run on time, but then you're taking the value off the market.When has Congress ever made a right decision about the market?

Siva: Some works will be undervalued with a flat price and others will be overvalued. A Paul Simon song is undervalued when its at the same rate as a song by Siva's cousin.

Adler: THe public places different values on works by different artists. why should the government come in and say that all works have the same value per content.

Lessig: It's ridiculous that you can record a cover song because the record industry has said that it's central to the vibrant market. But on the other side, taking a sample from a recording is prohibited by the law [6th Cir.] Why does the government intervention that promotes the most creativity?

Hansen: When parties have been unreasonable, they look to the government to step in and fix the problem. ASCAP v. Girl Scouts. Maybe if (c) owners remain unreasonable, then perhaps we do need government intervention.

Audience Question: Authors quote pop songs often as epigraphs of a novel. It's completely normal for an editorial to tell the author to seek a copyright clearance. Do you think that this is an area where the author should stand up to be a champion for fair use? [Sounds like someone is looking for free legal advice...]

Adler: If the industry colludes to do this all together, that's an anti-trust problem. But if each publisher does this, it would do something. The GC might say, I have better things to do than bother with this.

It's hard to take notes about Lessig's presentation because he actually uses his slides well-- to add context and not merely to duplicate the text of his talk. But this is a blog-- where it's just as good to do something quickly as it is to do it well:

Testifying before Congress, JP Sousa lamented the development of mechanical music reproduction, which would kill the culture of sitting around and singing popular and traditional songs.

With analog works, standard, everyday uses by citizens are unregulated (read, etc.). A small sliver of uses that involve copes
1. regulated uses (distributing mass copies)
2. fair uses (quoting a book in a review)
3. free uses (reading, loaning, the everyday uses by individual citizens)

New digital/internet culture
Two very different internet cultures evolving.
1. Read only culture (RO)
-Extraordinary empowered by these techs to buy and consume culture produced elsewhere. eg: Apple iTunes, pay-per-read ebooks.
-Offers perfect control over how people consumer-- the couch potato culture

2. The read-write/internet culture (RW)
-blogger, flickr, 6apart, myspace
-consumers don't just consumer, but create and share creativity.
Examples:
-anime music videos (redits anime movies to create music videos. I know what we're doing for our next video...)
-grey album, bush-blair, bush:hard work. (link to this)
It is a part of literacy now--
57% of teenagers created and shared "content" themselves and share it on hte internet. How they speak and think.
Anyone with a $1500 computer can do this. [just so long as they have 1500 to get a computer.]
It's the same kind of speech people engaged in before, just using different tech to facilitiate this kind of speech. Differently empowered speech.
Freedom to speak.

Copyright law on the internet serves to promote the vision of the read-only culture on the internet. In the analog world, (c) owners couldn't control these normal everyday uses.
If the law controls copies, in the digital world, those normal uses create copies, and so the amount of uses that are regulated by (c) law increase to include most uses.
DRM tech perfects control of how culture gets consumed-- promotes the RO culture.

The RW culture conflicts with (c) law.
This culture makes use of copies as part of the normal (non distributive) uses
But the law presumptively regulates copies, so uses are presumptively illegal and permission is not coming.

At a fair use conference, Lessig comes out against fair use.
World with fair use is better than one without.
But, fair use shifts the debate over the important questions about how culture gets regulated.
Shifts attention away from free use.
In a world where every use is a copy, the free uses because presumptively regulated.
So then, why do we have to justify any freedom to use this.
It's a very bad thing that the law regulates as broadly and presumptively as it does.
Quoting Prof. Litman: in the digital world, (c) law touches everyone and everything.
Discussion of fair use obscures the fundamental question: "why regulate at all?"

The second problem with fair use is that it ignores the costs.
Fair use is expensive. 4 factor balancing test is not too easy. There are no clear simple rules in fair use.
This is law written for lawyers-- complex, uncertain. It's harmless where it's big companies that can afford (good for lawyers). When applied just by lawyers, it is decided rationally.
But it's not just lawyers in court anymore. It's any idiot with a computer.
Lawyers kill markets for creativity because of the uncertainty to the process.
Difficulty of acquiring rights to uses makes it difficult. e.g. films at Sundance needing to clear music rights. By leaving uncertainty, it drives away creativity (through risk-aversion) and makes it difficult (if not impossible) to sell marginally commercial (non-mass market) creative works.

See Patry & Posner- Fair Use and Statutory Reform in the Wake of Eldred

Incentives for (c) owners to overclaim their rights and the costs to creativity-- not only the $$, but also prevents release of works by risk-averse creators.
We tend to focus on the $$ cost and not the threats to free speech.

Lessig feels blue.
What solution?
System of fair use is ridiculous for regulating this kind of speech
But we live in a culture where to question the foundation of IP law is to be called a communist-- IP McCarthyism. Anything other than incremental change is a non-started in DC

Some ideas to mitigate the problem:
Documentary Filmmakers’ Statement of Best Practices in Fair Use (previous reference)
Stanford CIS Fair Use Project
Free Speech Insurance Cooperative and "fair use" insurance liable claims.

What we really need is some way of overcoming the insanity of these ways of regulating access to speech.
(c) law is necessary, but it shouldn't extend beyond what is necessary (and threates free speech values)
We need a clear line (an affirmative fair use carve out) and limit the speech regulation to what is necessary and leaving the rest to be free.

The one thing Lessig agrees with Jack Valenti on is that the cost of the current copyright law is the creation of a generation of criminals. The morality expressed in the use of speech by children in a way that is against the law. Producing a generation of kids look to the law and see the law as an "ass." And avoid the law and disengage from the idea that the law matters. There is great harm produced by this attitude towards the foundational rule of law in this country. [The broken windows theory of copyright.]

Comedies of Fair Use

I'm here blogging live (on tape) from the Comedies of Fair Use at NYU.

These posts are written in real time and represent notes, more than polished thoughts. But since there's no WiFi signal here, you're getting them on tape delay.

Why Oppose Net Neutrality?

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An anti-net-neutrality coalition launched their lobbying site at Hands of the Internet. The best argument on their side: regulation is bad for the internet. THe internet has developed so quickly to what it is today because of the lack of regulation. Any new neutrality regulation will be burdensome and onerous for the pipe owners who will be prevented from making money by such a regulatory scheme.

The advantage of a non-neutral internet (to broadband service providers, that is) is the ability to offer premium services and not simply internet access. Why compete and speed and reliability when you can compete by offering premium services that cost less to implement and offer more potential value to consumers. Let's take a quick trip to the sales pitch in the hypothetically non-neutral internet:

    Consumers…
  • Want access to online video? You could download video that with your 5 MB/sec Broadband Basic connection, but for only an additional $7.99/month, you can have FastLane access to video that will let you watch video from our premier content partners (including NBC, Microsoft and MTV) at high-resolution.
  • -Want to connect to your office securely? For only $12.99/month more you can run a secure VPN connection.
  • Want to use VoIP? On our standard connection, all VoIP packets are blocked, but for only $7.99/month, you can make unlimited voice chats through your computer, or for only $11.99/month, you can connect a standard phone and talk for 1000 minutes per month with no long distance charges.
  • Want to download software updates? For an additional $4.99/month, you can use the FTP and BitTorrent protocol on your connection.
  • Instant messaging is free to other CableCo users!*
  • *Note: premium connection fees ($0.10/message) may apply to IMs sent to users of other ISPs.

ISPs look enviously at the business of the wireless carriers, who can charge premium rates for access to premium services on their wireless networks, like access to audio/video or news and sports scores. And those wireless networks are resulting in an unprecedented sharing of creative media by individuals. Oh wait, that's the free internet. The advanced services offered by wireless carriers at advanced prices are rarely used. The NY Times reports: Video Handsets Mostly Just Used as Phones

Cellphone companies, especially Sprint and Verizon Wireless, have been aggressively promoting mobile video services, which cost an average of $10.70 a month for access to sports, news and weather clips. More than a quarter of cellphones now in use can play such videos. But only 1 percent of wireless subscribers are using their phones to watch them, according to a recent survey by the NPD Group, a market research firm.

Decisis: "Net Neutrality", the cable industy, universal Wi-Fi, and the collective wisdom embodied in stock prices: "Now, maybe a bundle-happy, cash-ascendant cable industry and net neutrality coexist happily together and I'm being silly to even post on this, and really there's just no conceptual connection. . ."

Will new net neutrality regulation allow the information economy to evolve as freely as it has over the last decade or will such regulation merely freeze the internet in 2006?

Did the internet develop so well because it was first delivered to households through the common carrier phone lines? Or did the internet develop slower than it would have otherwise because telephone companies were prevented from innovating because of the common carrier regulations?

Interesting Miscellany

Here are some recent links of interest from around the web on various topics:

Copyright term and the public domain
Raizel Liebler, LibraryLaw Blog: The Tale of One Bunny, Copyright Statements, & Public Domain: A Cautionary Tail: "This intellectual property cautionary tale starts because I was puzzled by the copyright notice in a historical mystery novel. Published in the United States in 2004, ‘Tale of Hill Top Farm’ by Susan Wittig Albert is based on the life of Beatrix Potter and includes references to many of her famous characters, including Peter Rabbit, his friends, and relations."

Photography and Copyright fair use, Trademark fair use, Right of privacy/publicity
Lien Verbauwhede, WIPO: Legal Pitfalls in Taking or Using Photographs of Copyright Material, Trademarks and People: "Photographers and users of photographs face certain risks when taking and publishing photographs. This article provides an overview of the general legal principles applicable to taking photographs of copyright works, trademarks and people." (Via I/P Updates.)

Copyright and search
Fred von Lohmann, EFF Deep Links: Copyright v. Indexing, Part 1: TorrentSpy: "A prediction: the world of copyright law is about to collide with the world of digital indexing and search, and the collision will be among the most important digital copyright issues of the next several years."

Trademark and corporate formation/naming
Martin Schwimmer, The Trademark Blog: Why Did I Get A Demand Letter If I Was Allowed To Incorporate Under That Name?: "The problem is that a corporate name is the name that the Secretary of State (which oversees incorporation in a state), allocates to a legal entity, after conducting an idential or near-identical search of the name, in that state. The availability of a corporate name means only that there is no other legal entity by that name in that state, and there is no trademark significance to this fact…"

Copyright, music and mixtapes
Record store owner Alan Berry in the NY Times on mixtapes: The Tale of the Tapes: " Illegal products should not be sold. But it's disingenuous for the recording industry to compare hip-hop mixtapes to a bootleg recording of, say, a Dave Matthews Band concert. After all, mixes aren't bootlegs at all— they're advertisements."

Julie Hilden, Findlaw's Writ: Four Major Television Networks Challenge the FCC's Regulation of Indecency Why Modern Technology Has Made This Always-Dicey Area of Law Obsolete: "In this column, I'll explain why indecency law has always been on extremely tenuous ground, from a constitutional perspective. I'll also explain why - thanks to modern technology -- the Supreme Court might finally take the networks up on their invitation to make indecency law a historical relic, in order to make way for a more robust information age."

Last week, Joe Gratz and David Maizenberg blogged the Blog Law and Blogging for Lawyers Conference. Conference organizer Cathy Kirkman recaps.

This week, The Berkman Center for Internet & Society at Harvard Law is hosting a symposium on Bloggership: How Blogs Are Transforming Legal Scholarship. The papers that will be presented at the symposium are available at SSRN

Blogging isn't the subject, but LawMeme blogged the Access to Knowledge conference at Yale last weekend.

There's no conference involved, but John Gruber is taking his excellent and thoughtful Mac-centric blog, Daring Fireball full time. He discusses the Catch-22 of successful blogging: Initiative: "What I’ve concluded, though, is that if I want to make a full-time income from Daring Fireball, I need to just do it full-time. I.e. that it’s not going to work the other way around — to wait for the revenue to burgeon and then start putting full-time effort into it."

Caching and Copyright

In Parker v. Google, No. 04 CV 3918 (E.D. Pa. 2006), District Judge R. Barclay Surrick ruled that automatic caching of Usenet posts is neither direct or contributory copyright infringement.

When an ISP automatically and temporarily stores data without human intervention so that the system can operate and transmit data to its users, the necessary element of volition is missing. The automatic activity of Google’s search engine is analogous. It is clear that Google’s automatic archiving of USENET postings and excerpting of websites in its results to users’ search queries do not include the necessary volitional element to constitute direct copyright infringement.

William Patry: Parker v. Google: "The direct infringement holding in Parker may be a very welcome harbinger that courts are becoming more realistic about the way the Internet works and moving, finally, away from the misreading of 'copy' perpetuated by MAI v. Peak."

Kevin Delaney, The Wall St. Journal: Google Wins Copyright Battle; Archiving Issue Is Still Unclear: "Some legal experts said the ruling, issued last week in a case brought by Internet publisher Gordon Roy Parker in U.S. District Court in Philadelphia, could influence judges in other cases pending against Google, potentially bolstering the Internet company's legal defenses. Those cases include high-profile suits brought last year by writers and publishers and by the Agence France-Presse news agency alleging that Google's services violate copyright."

Save the Internet

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This weekend, a new lobbying effort started to preserve the public internet (in the public interest): Save the Internet. Members of the coalition behind Save the Internet include Free Press, MoveOn.org, Consumers Union, American Library Association, Common Cause, Center for Digital Democracy, Public Knowledge, Association of Research Libraries, Craig Newmark (Craigslist) and law professors Lawrence Lessig (Stanford), Tim Wu (Columbia), Susan Crawford (Cardozo) and Glenn Reynolds (Tennessee).

Some reactions:
Art Brodsky, TPM Cafe: Congress Is Giving Away the Internet, and You Won't Like Who Gets It: "Don’t look now, but the House Commerce Committee next Wednesday is likely to vote to turn control of the Internet over to AT&T, Verizon, Comcast, Time Warner and what’s left of the telecommunications industry. It will be one of those stories the MSM writes about as “little noticed” because they haven’t covered it."

David Weinberger, Joho the Blog: Why Net neutrality matters: "Net neutrality (formerly known as the end-to-end principle) means that the people who provide connections to the Internet don't get to favor some bits over others. This principle is not only under attack, it's about to be regulated out of existence. Here's why it matters…"

Jeff Jarvis, BuzzMachine: Save the Internet, Indeed: "The age of business models built on scarcity and on keeping your customers from doing what they want to do is over. Now we just have to make sure that Congress doesn’t try to keep it on artificial life support."

Michael Froomkin, Discourse.net: On 'Saving the Internet': "Regulating ISPs as to how they prioritize and deliver content is I think deeply second-best to true competition in the broadband services market for all sorts of reasons."

Elsewhere, Jeff Pulver is hosting a contest for Save the Net Viral Video. In a video, Alex Curtis explains Net Neutrality

Some more thoughts on net neutrality
We would not need new legislation to protect the free internet if there was meaningful competition in the broadband access market. In the absence of that competition, the monopoly power wielded by the rapidly consolidating major telephone and cable providers could extort "protection money" in addition to the charge for bandwidth from business that rely on the internet. Regulation can prevent broadband access providers from exercising their monopoly power to harm the public interest.

Because of the lack of meaningful competition in broadband here in the US, we are falling further and further behind the leading countries in the quantity and quality of our information infrastructure. From Foreign Affairs, May/June 2005: Down to the Wire

In the first three years of the Bush administration, the United States dropped from 4th to 13th place in global rankings of broadband Internet usage. Today, most U.S. homes can access only "basic" broadband, among the slowest, most expensive, and least reliable in the developed world, and the United States has fallen even further behind in mobile-phone-based Internet access. The lag is arguably the result of the Bush administration's failure to make a priority of developing these networks. In fact, the United States is the only industrialized state without an explicit national policy for promoting broadband.

More than enforcing network neutrality, the US needs a real broadband policy. that will encourage-- rather than forbid-- projects like community and municipal wireless networks, promote competition for broadband and mobile access, and make it possible for businesses, individuals, and the federal, state and local governments to take better advantage of the information age.

Previously: Three Things About Network Neutrality (Apr. 17, 2006)
The Broadest of the Bands (Aug. 26, 2005)
State support for information access (feb. 25, 2005)
Net Neutrality Reading List (Feb. 28, 2006)
Brand X (Jun. 27, 2005)

The Problem with Wikipedia

Jason Scott recently gave a talk about The Great Failure of Wikipedia. The audio is available at the Internet Arcive: The Great Failure of Wikipedia (April 8, 2006). Scott uses specific examples to discuss the problems that face Wikipedia. Despite the appearance of veracity and authority, Wikipedia faces significant challenges before it embodies "the availability of the sum
of human knowledge to everyone on Earth for free."

Wikipedia remains a great place to be an information tourist, but falls short as a serious information resource. The anti-expert bias that Scott notes in the Wikipedia editorial process will continue to keep the actual Wikipedia from becoming anything more than a novelty for information professionals.

In the NY Times, Randall Stross writes: Anonymous Source Is Not the Same as Open Source "Wikipedia, the free online encyclopedia, currently serves up the following: Five billion pages a month. More than 120 languages. In excess of one million English-language articles. And a single nagging epistemological question: Can an article be judged as credible without knowing its author? Wikipedia says yes, but I am unconvinced."

At Concurring Opinions, Laura Heymann notes a case in the US Court of Federal Claims that discussed the reliability and admissibility of Wikipedia articles: Concurring Opinions: Wikipedia in the Courts: "In an opinion released in February, the U.S. Court of Federal Claims scolded a special master in a vaccine injury case for sua sponte supplementing the record with ‘medical ‘articles’ on afebrile seizures’ that she located on the Internet."

Lore Sjöberg, Wired: The Wikipedia FAQK: "The Wikipedia philosophy can be summed up thusly: 'Experts are scum.'"

danah boyd offers some insight on the Wikipedia editorial process: on being notable in Wikipedia: "People wanted "proof" that i was notable; they wanted proof of every aspect of my profile. Then, when people in my field stood up for my entry in the discussion for deletion, they were attacked for not being Wikipedians."

Do any readers have academic Lexis/Westlaw or Hein access? Could you run a search to see if any law review articles cite to wikipedia, and if so, how many?

Previously: Wikipedia Woes, Wikipedia and Authority

(edited 4/24 to add Concurring Opinions, NYT and Wired links)

The F Word

The NY Times reports that the four television networks are challenging the Constitutionality of the FCC indecency and profanity standards: TV Networks Sue to Challenge F.C.C.'s Indecency Penalties: "With no allies among either the Democrats or the Republicans on the Federal Communications Commission nor any significant ones in Congress, the four broadcast networks, joined by the Hearst-Argyle Television group of stations, embarked late last week on a low-risk strategy of turning to the courts."

See also Christopher M. Fairman, Ohio State Moritz College of Law, Fuck: "This Article is as simple and provocative as its title suggests: it explores the legal implications of the word fuck. The intersection of the word fuck and the law is examined in four major areas: First Amendment, broadcast regulation, sexual harassment, and education. The legal implications from the use of fuck vary greatly with the context."

Today in Salon.com, Farhad Manjoo has a typically excellent article that frames and discusses why network neutrality is such a critical issue clearly and concisely: The corporate toll on the Internet: "Telecom giant AT&T plans to charge online businesses to speed their services through its DSL lines. Critics say the scheme violates every principle of the Internet, favors deep-pocketed companies, and is bound to limit what we see and hear online."

LA Times: Phone, Cable May Charge Dot-Coms That Want to Race Along the Internet: "As Internet traffic starts to clog, the telephone and cable companies that control the nation's telecommunications networks are considering charging dot-coms such as Google Inc. and Yahoo Inc. extra to make sure their data gets special treatment -- zooming along faster and more reliably than anyone else's."

Here are the three key points about why network neutrality is critical to the information age:

  1. A neutral internet is cheaper.
    A preferential, proprietary internet requires more expensive routers that move preferred packets into an HOV lane. As bandwidth gets cheaper and cheaper, it is probably cheaper and more cost effective for the individuals, small businesses and large companies who use the internet to pay for wider information superhighways than adding an HOV lane to the existing networks. Unlike with real highways, creating more bandwidth does not take away from existing real property. Wheres there is a fixed amount of land available, the world of networks is not zero-sum.
  2. Internet access has monopolistic characteristics.
    Consumers may have the choice of access through a cable provider or a telephone (DSL or fiber) provider. Currently, the internet access market generally relies on incumbent wireline infrastructure. Satellite has enough drawbacks that it is an acceptable substitute for other broadband in remote areas. Broadband over power lines may exist as a third option, but again, it relies upon the local power monopoly. Wired access may in fact be a natural monopoly and as such needs to be regulated. A free market in internet access may not be competitive.
  3. Neutrality promotes free speech
    The threat of a non-neutral internet is that monopolistic local access providers could charge a premium for major content and service providers to connect to their network. If Google wants to reach its customers who use Verizon, AT&T and Time Warner customers over a non-neutral internet, Google could have to pay a connection fee to Verizon and to AT&T and to Time Warner in addition to the fees it pays to its own internet access provider. Tony Soprano would be proud. And this wouldn't just affect Google, or Apple or Microsoft. It would affect Homestar Runner, YouTube, Typepad, the Internet Archive, the New York Times and everyone who is sending bits of information to the internet at large.

Network neutrality is not just a question of telecommunications policy, but a question of the freedom of speech.

Little Orphan Works

Since I doubt I will get around to re-recording the problematic and no longer current podcast anytime soon, here are the related links about the Copyright Office Report on Orphan Works.

This Report addresses the issue of “orphan works,” a term used to describe the situation where the owner of a copyrighted work cannot be identified and located by someone who wishes to make use of the work in a manner that requires permission of the copyright owner. Even where the user has made a reasonably diligent effort to find the owner, if the owner is not found, the user faces uncertainty – she cannot determine whether or under what conditions the owner would permit use. Where the proposed use goes beyond an exemption or limitation to copyright, the user cannot reduce the risk of copyright liability for such use, because there is always a possibility, however remote, that a copyright owner could bring an infringement action after that use has begun.

Brennan Center, Free Expression Policy Project: A Big Step Forward on "Orphan Works": "Without doubt, there will be much discussion and debate over the Copyright Office's proposal once it is introduced in Congress. If enacted, it will represent a big improvement over the current situation, and will enable many worthy orphans to find new homes."

Cathy Kirkman, Silicon Valley Media Law Blog: Copyright Office reports on orphaned works: "This proposal seems like a reasonable step to create some flexibility in the system, in light of the confluence of an extended copyright term with no formalities to maintain copyright interests and the fact that copyrights are regularly implicated through today's digital uses."

Joe Gratz: Copyright Office Issues Orphan Works Recommendations "After an initial look at the proposed statute, it appears to strike a desirable balance between lessening the risk to users of orphan works and providing appropriate compensation to resurfacing copyright holders. "

Eric Goldman, Technology & Marketing Law Blog: Orphan Works Report Released: "My initial reaction is that there is a lot to commend this proposal. It addresses one of the big problems of copyright law--the across-the-board strict liability standard--by providing a more robust defense for those trying to do the right thing. (The current defense of "innocent infringement" offers little comfort to secondary users--there's still a lot of money on the table in an infringement claim)."

Photo District News: Photo Groups Lobby To Protect Copyright "Orphans": "Some photographer groups, however, see this as a nightmare proposal that will blast a huge hole in copyright law. They envision companies trolling the Internet for unclaimed images to resell."

Jerry Brito and Bridget Dooling, An Orphan Works Affirmative Defense
to Copyright Infringement Actions
, 12 Mich. Telecomm. Tech. L. Rev. 75
(2005): "There might be a simple solution to the orphan works problem that respects the rights of copyright owners while freeing up works for which the rightsholders cannot be found. If a would-be user of a copyrighted work completes a reasonable search in good faith and fails to find the rightsholder, the user should be able to use the work. If she is later sued, she should be able to defend in court by showing that she diligently did her best to find the copyright owner."

Some links on network neutrality

Susan Crawford: FCC/Congress; rules/no rules: "Now, in the substrate neutrality debate (still looking for a better term -- maybe we should give up and go back to 'information superhighway' ideas -- how about 'open roads'?) I've come to believe that someone, some government actor, has to get involved.  This is a big shift, and it's happening (for me, at least) because there isn't any real competition in the market for unfettered internet access.  Indeed, there's no competition at all in that marketplace.  All the big guys believe that they should own and control and prioritize."

Erick Schonfeld, B2Day: Powell Warns Net Neutrologists Not to Be Naive: "Former FCC chairman Michael Powell is up on the stage at the Freedom to Connect conference right now, and he warns the tech elite crowd here not to be naive about the dangers of asking Congress for legislation on Net Neutrality."

Dana Blankenhorn, ZDNet Open Source: Is the Network Neutrality bill in trouble?: "After a day at the Freedom2Connect conference outside Washington, I am afraid that Senator Ron Wyden's Network Neutrality bill may be going nowhere this year."

Martin Geddes, F2C Network Neutrality Speech: "Within the current funding and construction approach to networks, I believe a network neutrality law is a tactical, practical, strategic and philosophical error. It takes us further away from Freedom to Connect."

Ed Felten discusses how a non-neutral internet would differ from today's internet Discrimination, Congestion, and Cooperation: "I’ve been writing lately about the nuts and bolts of network discrimination. Today I want to continue that discussion by talking about how the Internet responds to congestion, and how network discrimination might affect that response."

David Weinberger: Why I don't love my computer any more: "As DRM locks down my machine so that it becomes more like a TV, I'm going to feel more alienated from it."

Will the same thing happen if the Internet is balkanized into a series of somewhat connected proprietary network? In the absence of a law requiring network neutrality, will consumers have the market power to demand true internet access?

Assorted Reading

Privacy and Anonymity
Kevin F. Berry, Law.com: How to Unmask an Anonymous Blogger: "When does it make sense to spend the time and expense necessary to determine the identity of an anonymous blogger who is damaging the company?"

New York Times: The Theater of the Street, the Subject of the Photograph: "The suit was dismissed last month by a New York State Supreme Court judge who said that the photographer's right to artistic expression trumped the subject's privacy rights. But to many artists, the fact that the case went so far is significant."

Digital Music and Movies
At Last, Movies to Keep Arrive on the Internet - New York Times: "Six major studios plan to begin selling movies over the Internet today that buyers can download and keep for watching at any time.…New movies will cost about $20 to $30 to download"

John Gruber, Daring Fireball: The iPod Juggernaut: "In short, and I mean this in the nicest way possible, Apple’s iPod competitors are totally fucked."

MP3 Insider: The truth about your battery life. It takes more processing power to play tracks with DRM. That processing power shortens the battery life of portable digital music players. "The Archos Gmini 402 Camcorder maxed out at 11 hours, but with DRM tracks, it played for less than 9 hours. The iRiver U10, with an astounding life of about 32 hours, came in at about 27 hours playing subscription tracks. Even the iPod, playing back only FairPlay AAC tracks, underperformed MP3s by about 8 percent."

British Court Hears Apple v. Apple and 'Le Freak': "In a clash of cultural icons, the Beatles' record company, Apple Corps, wants Apple Computer to stop using its familiar logo, in the shape of an apple with a bite out of it, on the iTunes Music Store. Apple Corps contends that the use of the logo infringes on a 1991 agreement, which it says barred Apple Computer from using the logo in connection with the sale of music."

Copyright
Creative Commons Canada: Dutch Court upholds Creative Commons licence: "Photographs made available on flickr.com under a Creative Commons Attribution-Noncommercial-Sharealike license may not be reproduced in a weekly magazine without the author’s permission."

Raymond Nimmer: Can I download it to try out the music?: "No, not unless the copyright owner permitted or invited that. The idea that downloading a file is permitted because it is so easy on Internet is simply wrong. Downloading is copying and infringement. Indeed, it can have massive adverse effects on copyright owners."

Slate: The Dan Brown Code: "Dan Brown, author of the mega-selling The Da Vinci Code, has brought forth his most thrilling piece of writing to date: a court document. Brown, who is being sued for copyright infringement in London by the authors of Holy Blood, Holy Grail, filed a 69-page witness statement with the British courts back in December.… In its textures—it is at turns snotty, contemplative, and disarmingly personal—it is clear Brown intended the brief less as a legal defense than as a literary memoir."

DRM
Silicon Valley Media Law Blog: Materials from talk on DRM: law and technology

Mark Cuban: Digital Rights Management - The coming collateral damage: "Unfortunately for content owners, digital rights/copy protection schemes have always proven crackable. No matter how smart the good guys think their programmers are, the bad guys have programmers that are just as smart. More importantly, the good guys have to build the perfect protection scheme, impenatrable by any of infinite number of possible attacks."

Smithsonian & Showtime Agreement

The NY Times reports on an deal between the Smithsonian Institution and Showtime: Smithsonian Agreement Angers Filmmakers: "On March 9, Showtime and the Smithsonian announced the creation of Smithsonian Networks, a joint venture to develop television programming. Under the agreement, the joint venture has the right of first refusal to commercial documentaries that rely heavily on Smithsonian collections or staff. Those works would first have to be offered to Smithsonian on Demand, the cable channel that is expected to be the venture's first programming service."

The Patry Copyright Blog, with insightful comments from Fred von Lohmann and Joshua Wattles: Smithsonian Showtime Agreement: "The Smithsonian is not, as I understand it, attempting to exercise any copyright interests. It status on that score is a bit murky, although it is clear that suits against it have to be brought in the Claims Court not in federal district court. Instead, the issue centers on restrictions on access to the physical objects."

In 2005, Music Went Digital

The RIAA released year-end statistics for the US recorded music market. The NY Times reports: Music Industry's Sales Post Their Sixth Year of Decline: "In the United States, overall shipments of music products, including CD's and digital albums and singles combined, fell 3.9 percent last year."

According to the RIAA, physical unit sales dropped by 8% from 2004 and revenues from those sales dropped by 7.9%. In contrast, digital sales increased by 166.2% in terms of unit sales and 174.5% in revenue. The overall net effect was that total unit sales grew by 35.9% from 2004 and revenues declined by six tenths of one percent.

At The Long Tail blog, Chris Anderson discusses the effect of the digital distribution market (and uses snazzy charts): Music Industry: Is digital making up the difference?: "In revenue terms the industry did about as well last year as it did before, and it's worth noting that the margins on digital distribution are considerably higher because there are no physical goods to manufacture and ship. So 2005 may have been more profitable than 2004 (it certainly was for Warner Music Group). Who knew?"

For the entire world, IFPI also released its 2005 year-end report: Digital formats continue to drive the global music market "Record company trade revenues from digital sales globally nearly tripled in value, from $400 million to $US 1.1 billion in 2005. The total number of digital single tracks downloaded online or to mobile phones rose to 470 million units, up from 160 million in 2004. The US, Japan, UK, Germany and France are the top five digital markets. In general, countries with a greater percentage of digital sales are the strongest markets for music sales overall."

The Silicon Valley Media Law Blog reports that PROs ASCAP and BMI also saw significant growth in new media revenue: PROs see leap in new media revenues: "Public performance rights organizations saw marked increases in new media revenues in 2005, according to their reported financial results."

Pitchfork interviewed attorney Steve Gordon about file sharing, copyright law, the record industry and PROs: Live at the Witch Trials: "I think the culture of the labels have been unable to adapt to the impact that new technology, particularly the web, has had on the recorded music. The labels, for many years, combined two basic characters-- Ivy League-trained lawyers and savvy music business types with "ears." Sometimes one executive was both-- Clive Davis, for instance. But the one culture that was never present were techies. They are there now. But they do not call the shots. The Sony DRM debacle shows they still have no clue."

Last week, the House Committee on Energy and Commerce Subcommittee on Commerce, Trade, and Consumer Protection held hearings on Digital Content and Enabling Technology: Satisfying the 21st Century Consumer. This is the second half of the podcast about these hearings, focusing in on fair use, DRM/TPM and anti-circumvention.

IPTelligentsia Podcast: Satisfying the 21st Century Consumer (Part 2/2) (24:14, 22MB MP3).

Related:
Freedom to Tinker: Bernard Lang Reports on the Proposed French DRM Law

Open Media Commons

Eliot Van Buskirk, Wired News: Reasons to Love Open Source DRM

Timothy B. Lee, Cato Institute: Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act

David Pogue, NY Times: review of Slingbox

Consumer Electronics Assoc: CEA Praises Digital Technology Hearing; Urges Congress to Resist Content Industry Pleas for Technology Mandates; Increased U.S. Jobs and Employment Thanks to Tech Innovation

Broadcasting & Cable: Alternate TV Takes the Hill

Previously: IPTelligentsia Podcast: Satisfying the 21st Century Consumer (Part 1)

F2C

The Freedom to Connect conference about the future of the internet is happening down in the metro DC area today and tomorrow.

Bloggers are on the scene, including David Weinberger.
The conference organizers are streaming audio, too.