Revisiting Indecency

After a quiet year on the indecency front, the FCC recently revisited two indecency complaints from programs that aired in 2003 and issued forfeiture orders.

In 2004, the Commission filed its Notice of Apparent Liability In re: Complaints Against Various Licensees Regarding Their Broadcast Of The Fox Television Network Program “Married By America” On April 7, 2003 (FCC 04-242, October 2004). But the NYPD Blue NAL and forfeiture orders were both released in the last month, Notice of Apparent Liability In re: Complaints Against Various Television Licensees Concerning Their February 25, 2003 Broadcast of the Program “NYPD Blue” (FCC 08-25, January 25, 2008). In order to get this forfeiture order in before the statute of limitations applied, ABC and the ABC affiliates were given only 17, rather than the usual 30, days to respond.
The NYPD Blue forfeiture ruling finds the Commission not only attempting to find the bounds of indecent depictions of “sexual organs and excretory organs –specifically an adult woman’s buttocks,” but once again defending its indecency regulations against contentions that the indecency regulations are inconsistent with the First Amendment.

The Mass and The Personal

While the pre-Oscar crowds at Union Square sold out early evening showings of Best Picture nominees No Country for Old Men and There Will Be Blood, the crowd in the theater for U23D was fairly sparse.
Perhaps because it was in a regular theater rather than on the big IMAX screen, but unlike Bob Lefsetz, I found the 3D-ness underwhelming except for a few moments. Overall, the film seemed to be more intimate and less grand than the concert itself. I was disappointed that the camera was generally so close in on the band members and only rarely and ineffectively attempted to convey the size of the show. A couple of times, we looked out at the 60,000-odd people in the stadium from behind Larry’s drum set, but it was too brief to get a sense of what it is like standing in front of that many people.
But while the show was great, and worthwhile seeing, even if the 3D was underwhelming, what I found most striking is just how well documented the show was, even without the professional camera crew. When the film showed Bono, the Edge and Adam out towards the audience, you could see many, if not most, of the audience taking photos or video with their cameras or cameraphones. Some of these videos are on the web.
Here are two fan-shot videos of Pride (in the Name of Love) from that show:


And here’s the professionally filmed feed:

The Beastie Boys’ fan shot concert film, Awesome: I Fuckin’ Shot That is probably not a prototype for the future of all concert film, but it is interesting to see how many of the thousands of different impressions of a large concert get fixed and posted online.
And with an event that is broadcast worldwide, like the Academy Awards, the web is a way of seeing that event through different filters. I was dubious about the value of liveblogs of the Oscars. Unlike, say, today’s FCC hearings at Harvard, the Oscars are pretty well broadcast. Liveblogging that is usually merely an exercise in self-indulgence.
But if you are writing about the impact of this event on a niche industry, then this kind of reporting adds a different kind of analysis. with his Inside the Marketer’s Studio liveblog, David actually did something different, interesting and utlimately useful for his core readers in the search engine marketing field.
While the personal media takes on major events are no substitute for the official media coverage– clips on YouTube don’t compare to a 5-story tall Bono in surround sound– but combining together enough personal media creates more context that can help to better understand, experience or frame an event.

Internet Freedom Preservation Act and Network Management Practices

Reps. Ed Markey (D-MA) and Chip Pickering (R-MS) introduced the Internet Freedom Preservation Act of 2008 (H.R. 5353).
This bill would “establish broadband policy and direct the Federal Communications Commission to conduct a proceeding and public broadband summits to assess competition, consumer protection, and consumer choice issues relating to broadband Internet access services.”
It amends the Communications Act of 1934 to include open access principles and establish the importance of the internet for the economy of the US.

  1. to maintain the freedom to use for lawful purposes broadband telecommunications networks, including the Internet, without unreasonable interference from or discrimination by network operators, as has been the policy and history of the Internet and the basis of user expectations since its inception;
  2. to ensure that the Internet remains a vital force in the United States economy, thereby enabling the Nation to preserve its global leadership in online commerce and technological innovation;
  3. to preserve and promote the open and interconnected nature of broadband networks that enable consumers to reach, and service providers to offer, lawful content, applications, and services of their choosing, using their selection of devices, as long as such devices do not harm the network; and
  4. to safeguard the open marketplace of ideas on the Internet by adopting and enforcing baseline protections to guard against unreasonable discriminatory favoritism for, or degradation of, content by network operators based upon its source, ownership, or destination on the Internet.

Even though there are four principles, these are somewhat broader than former FCC Chairman Michael Powell’s four freedoms.
The bill requests a report from the FCC about broadband network providers. The information the bill specifically requests is (language somewhat simplified to be less precise, but easier to read. See the original text of the bill for the precise language):

    (A) whether broadband network providers refrain from blocking, thwarting, or unreasonably interfering with the ability of consumers to–
      (i) access, use, send, receive, or offer lawful content, applications, or services
      (ii) use lawful applications and services of their choice; and
      (iii) attach or connect their choice of legal devices, provided such devices do not harm the network;

    (B) whether broadband network providers add charges for quality of service, or other similar additional fees or surcharges, to certain Internet applications and service providers, and whether such pricing conflicts with the policies [set out earlier in this bill]
    (C) whether broadband network providers offer to consumers parental filters, spam filters and similar consumer services;
    (D) practices by which network providers manage or prioritize network traffic, including prioritization for emergency communications, and whether and in what instances such practices may be consistent with such policies of the United States;
    (E) with respect to content, applications, and services–

      (i) the historic economic benefits of an open platform;
      (ii) the relationship between competition in the broadband Internet access market and an open platform; and
      (iii) the policy choices and results of global competitors with respect to access competition and an open platform;

    (F) whether the need for enforceable rules governing openness, consumer rights, and consumer protections or prohibiting unreasonable discrimination is lessened if a broadband network provider provides significantly high bandwidth speeds to consumers; and
    (G) the potential of policies promoting openness in spectrum allocation, universal service programs, and video franchising to expand innovation through protection from unreasonable interference by network owners of an open marketplace for speech and commerce in content, applications, and services.

Finally, the bill would require the FCC to hold at least 8 broadband summits in geographically diverse locations around the US.
Rep. Markey’s press release: Internet Freedom Law Will Keep Internet Open For Future Innovators: “The goal of this bipartisan legislation is to assure consumers, content providers, and high tech innovators that the historic, open architecture nature of the Internet will be preserved and fostered. H.R. 5353 is designed to assess and promote Internet freedom for consumers and content providers. Internet freedom generally embodies the notion that consumers and content providers should be free to send, receive, access and use the lawful applications, content, and services of their choice on broadband networks, possess the effective right to attach and use non-harmful devices to use in conjunction with their broadband services, and that content providers not be subjected to unreasonably discriminatory practices by broadband network providers.”
Howard Feld, The Markey-Pickering “Net Neutrality” Bill: Grinding Out One More First Down In The Internet Freedom Bowl: “This is a good bill — probably the best that can get through in the current Congress. It advances the ball forward in a substantial way, and would make a good law if passed. It doesn’t solve all the problems, but it doesn’t pretend to do so either. It deliberate lines things up for the next step — assuming we get that far.”
Derek Slater, Rep. Markey’s new net neutrality legislation: “Net neutrality is too often painted as just about particular companies’ competing interests, but that’s missing the point. Rather, net neutrality and broadband policy are — and should be — about what’s ultimately best for people, in terms of economic growth as well as the social benefit of empowering individuals to speak, create, and engage one another online using the wide panoply of innovations available to them. In other words, broadband policy should come from the bottom up.”
The Wall Street Journal, Officials Step Up Net-Neutrality Efforts: “Big broadband companies are headed for a clash with Washington over whether consumers have a right to get as much as they want from the Internet, as fast as they want it, without paying extra for the privilege.” Maybe this is better framed as whether the broadband providers have an obligation to disclose how they restrict customers’ use of the internet and whether the public interest should require providers to offer access that does not discriminate against content, source or protocol.
In November, Comcast was found to be blocking and degrading certain P2P and groupware network protocols. The issue with Comcast is not that it is imposing limits on users’ bandwidth, but that it imposes those limits on the use of certain protocols and applications while failing to disclose that the limits exist and the extent of those limits.
Vuze, a online video provider whose software uses the BitTorrent P2P protocol to distribute content filed a complaint with the FCC about these practices Petition to Establish Rules Governing Network Management Practices by Broadband Network Operators. Free Press and Public Knowledge also filed a Formal Complaint against Comcast for Secretly Degrading P2P Applications and a Petition for Declaratory Ruling.
The Commission sought Comments for Declaratory Ruling Regarding Internet Management Policies and Comments on Petition for Rulemaking to Establish Rules Governing Network Management Practices by Broadband Network Operators.
The FCC has received more than 28,000 comments. Here is Comcast’s comment. Some of the other recent comments include Verizon and Verizon Wireless, Qwest,
Time Warner Cable, RIAA, American Library Association and CDT.
The FCC is planning on holding a hearing on February 26 in Cambridge, MA on Broadband Network Management Practices.

OMG! Yoko Ono sues plucky young singer named Lennon to stop using her first name!

On her Myspace blog, singer Lennon Murphy writes, Getting Sued by Yoko, “Yesterday I received notice that Yoko Ono had filed a law suit against me, asking for a cancellation of the trademark that I own for the name “Lennon.” This could very well mean the career that I have worked so hard at, the one you all have believed in, may come to an end.”
Not surprisingly, this was picked up in the mainstream music press.
NME, “Yoko Ono sues singer for being called Lennon”
Rolling Stone: “Yoko Ono is suing Lennon Murphy, lead singer of the band Lennon, for intentionally exploiting the name of her deceased husband, John Lennon.”
Not exactly. Ono has not sued Murphy to prevent Murphy from performing under the name LENNON. Ono seeks to cancel Murphy’s federal registration of the mark LENNON by filing a Petition for Cancellation with the Trademark Trial and Appeal Board. Ono is not suing Murphy to prevent Murphy from performing music as LENNON (in this filing.)
What Ono seeks to deny Murphy of is the exclusive right to perform and sell music under the name LENNON. Ono is not attempting to prevent Murphy from performing and engaging in commerce under the name LENNON, but to prevent Murphy from preventing other Lennons to use the name in commerce.
Murphy’s application was initially refused under §2(e)(4) of the Lanham Act for being “primarily merely a surname.” After the application was denied on the basis of it being merely a surname, Murphy’s attorneys petitioned that the name LENNON had acquired secondary meaning. One of the ways in which a mark can acquire secondary meaning is through use in commerce for five years (in Murphy’s case, starting in 1997). Murphy was granted Federal trademark registration #2676604 in 2003.
Ono’s cancellation petition argues that if there is any secondary meaning in the LENNON mark relating to pop music, that it is to John’s music that it refers. If an average consumer goes to a music store and sees a album bearing the mark LENNON, is that consumer more likely to associate that album with Lennon Murphy than John Lennon, Julian Lennon, Sean Lennon or anyone else in the world named Lennon?
If she wins this action, Ono will have simply broken up Murphy and her trademark registration. If Ono actually seeks to prevent Murphy from performing and recording under the name LENNON, that is a different complaint in a different court.
And it does not seem like Ono would do that. Boing Boing posts a letter, Yoko Ono: No, I’m not suing Lennon Murphy over “Lennon.”

On Copies

Kevin Kelly ponders ways to think about moving to a new media world where the marginal cost of all copies drops to zero: Better Than Free: “When copies are super abundant, they become worthless. When copies are super abundant, stuff which can’t be copied becomes scarce and valuable.”

Verizon’s not into policing copyright infringement

While AT&T is considering helping large copyright owners police infringements on its network, Verizon. The NYT Bits Blog reports, Verizon Rejects Hollywood’s Call to Aid Piracy Fight. Tom Tauke, Verizon’s executive vice president for public affairs offers three reasons why ISPs have no incentive to monitoring for copyright infringements:

“1) The slippery slope.
Once you start going down the path of looking at the information going down the network, there are many that want you to play the role of policeman. Stop illegal gambling offshore. Stop pornography. Stop a whole array of other kinds of activities that some may think inappropriate.
2) It opens up potential liability for failing to block copyrighted work.
When you look back at the history of copyright legislation, there has been an effort by Hollywood to pin the liability for copyright violations on the network that transmits the material. It is no secret they think we have deeper pockets than others and we are easy-to-find targets.
3) Privacy.
Anything we do has to balance the need of copyright protection with the desire of customers for privacy.”

Taking Down the Shred

Wired: Humorless Metalheads Shut Down Popular YouTuber: “The three unnamed artists filed copyright infringement claims against the parody videos of Finnish media artist Santeri Ojala, causing YouTube to shut down his account over the weekend.… Ojala’s popular videos poked harmless fun at famous guitar soloists by dubbing his own abhorrently bad strummings over rock concert footage.”
The “shreds” videos live again on at MySpace (until they receive a takedown notice) and at Wired.
Eric Clapton shreds

Since the videos comment on the seriousness of virtuostic guitar wanking, there is a non-trivial argument that these could be considered a parody fair use. Of course, there is also a non-trvial argument that these videos are defamatory and damaging to the guitarists’ reputations, even though they are public figures. But from that perspective, striking these videos down off one video hosting service may perpetuate them across the web becoming more powerful than imaginable.