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Are Indecency Regulations Obsolete?

The Authority to Regulate Indecency

Broadcasting is an area where the government has a greater interest in regulating indecent speech than in other media. In FCC v. Pacifica Foundation, the Supreme Court upheld the Commission’s authority to prohibit indecent speech in the broadcast media and to punish broadcast licensees who air indecency. Two unique characteristics of broadcast allow the FCC to regulate indecent speech broadcasts, “pervasive presence” in the airwaves and its “unique accessibility” to children. These characteristics were balanced against the idea that indecent speech falls "at the periphery of First Amendment concerns.”

Protecting children from inadvertent exposure to indecent speech represented the sort of interest that would allow the regulation of broadcast indecency. Both "the content and context of speech" are "critical elements" of the First Amendment analysis. Broadcast represents a pervasive presence in the household. The Court based its reasoning on a nuisance rationale under which “context is all-important.” Among the factors to be considered include the time of day of the broadcast, and how the content of the program will affect the composition of the audience. In contrast, the Supreme Court declined to extend the authority to regulate indecency to cable television and the internet because these media are not so pervasive. Citizens must make a conscious choice to subscribe to cable or to visit an internet location, while broadcast television permeates the airwaves and requires no subscription to view.

Because it is possible to prevent minors from accessing indecency on cable television, the internet, and for telephony, the Court has applied strict scrutiny and struck down regulations on indecent speech in those media. These media lack the same sort of pervasive push into the home as broadcast and must be evaluated under strict scrutiny. The availability of channel-blocking or internet filtering technology provides a “feasible and effective means” of furthering its compelling interests, which is less restrictive to speech than a ban based on time-channeling. Filtering and blocking make it possible to exclude certain individuals from access. Justice Powell noted that broadcast lacked that power to exclude a discrete part of its audience and must rely on time channeling to achieve similar results, where protected speech is available, but not readily accessible to minors.

Even with broadcast, an outright ban on indecency is impermissible under the First Amendment. Action for Children's Television v. FCC. However, in order to target regulations of indecency to the times when children would be watching television or listening to the radio, a “time-channeling” approach is a “narrowly-tailored” regulation. A prohibition on indecent broadcasts outside of a 10 P.M. to 6 AM “safe harbor,” was found to be an acceptable balance of the First Amendment interests of adults with the public interest in preventing the broadcast of indecent speech to children. While other media are not regulated for indecency, the D.C. Circuit continued to single out broadcast for unique treatment, allowing that “radio and television broadcasts may properly be subject to different-- and often more restrictive-- regulation than is permissible for other media under the First Amendment." Broadcast remains an anomaly within the Court’s First Amendment jurisprudence as the only field where government regulation of indecent, rather than obscene, speech is tolerated.

As part of its delegated authority to regulate broadcasting, the FCC has the specific authority to regulate the broadcast of “obscene, indecent, or profane language.” The FCC’s authority to regulate indecency relies on the statutory authority in 18 USC §1464, which criminalizes the broadcast of “obscene, indecent, or profane language by means of radio communication.”

The FCC Regulations prohibit licensees from broadcasting obscene material at all times and from broadcasting indecent material during the “safe harbor” period between 6 a.m. and 10 p.m. 47 C.F.R. §73.3999. In order to qualify as indecent, material must describe or depict sexual or excretory organs or activities and the broadcast must be patently offensive as measured by contemporary community standards for the broadcast medium.

Does technology obsolete indecency regulations?

In Pacifica, the Court justified regulating indecency on broadcast because of the unique characteristics of the broadcast medium, its “pervasive presence” in the airwaves and its “unique accessibility” to children. Today, however, the technological and media environment is sufficiently different that these circumstances may not justify limiting indecent speech on broadcast more than on cable television, satellite television, satellite radio, or the internet.

Nearly 90% of all households in the US have access to television through cable or satellite. For the vast majority of Americans, broadcast stations are just part of the televised content available. Cable and Satellite are not subject to indecency regulation because they are subscription services (one is less likely to unwittingly experience an indecent cablecast in their house than an indecent broadcast) and because they allow subscribers to filter out channels showing indecent content.

The V-chip allows television viewers to filter out content that may be indecent. Section 551 of the Telecommunications Act of 1996 encouraged the broadcast and cable industry to "establish voluntary rules for rating programming that contains sexual, violent or other indecent material about which parents should be informed before it is displayed to children," and to voluntarily broadcast signals containing these ratings. Televisions equipped with the v-chip allow parents to block undesirable programming at the time it enters the home.

All televisions sold in the US since Jan. 1, 2000 are equipped with the V-chip. Initially, parents were enthusiastic about the prospect of the v-chip. A 1999 Kaiser family foundation survey found that 77% of parents surveyed would use the v-chip to block shows they didn't want their children to watch. Yet, in 2004, usage of the V-chip stands at fewer than 15% of households, even though 74% have a v-chip equipped television. Researchers from the Annenberg Public Policy Center gave V-chip equipped television sets to families in Philadelphia and instructed the families on how to use the v-chip. After one year, only 30% of the families ever tried using the V-chip and only 8% of the families used the blocking feature regularly.

The FCC is preparing to transition broadcast television from conventional analog television to new digital technology sometime during the 21st century. DTV transition requires new sets or digital tuner converter equipment that will have the V-chip. At that point, all televisions capable of receiving broadcast television will have the V-chip and it will be as easy to filter broadcast television, as it is to filter cable television. Additionally, digital multicasting will ameliorate spectrum scarcity and allow broadcasters to increase the number of channels of content. Multicasting will also allow broadcasters to offer detailed metadata about the programs on subchannels. This data may include detailed information about potentially indecent content.

These new technological developments in broadcast offer arguments that the the special circumstances that justify regulating broadcast indecency may no longer exist.

In the 2004 Super Bowl Halftime Show Forfeiture Order, the Commission notes that the Supreme Court "expressly recognized in Reno the 'special justifications for regulation of the broadcast media.'" The Commission finds that the availability of the V-Chip does not change the need for broadcast indecency regulations, because the V-chip "cannot be utilized to block sporting events such as the Super Bowl because sporting events are not rated." In a footnote, the Commission agrees that the V-chip is an important protection outside the context of exempt programming, "but it does not eliminate the need for enforcing [the] indecency rule or undermine the constitutionality of that rule."

However, the mere fact that sports and commercials are unrated under the V-chip scheme might not protect broadcast indecency regulations. Wouldn't the least restrictive means of regulating speech be to require that commercials and sports programming are rated by the V-chip and then letting individual parents decide what programming can enter their houses?

If a court can find that sufficient safeguards exist to protect children from indecent content on broadcast television, then the First Amendment may prohibit indecency regulation. However, broadcasters may always be subject to greater obligations than cable and internet video distributors. Under the "public trustee" model of spectrum rights, broadcasters do obtain a broadcast licensee and the rights to valuable spectrum from the public and should have some obligation to serve the public. The safe harbor does serve a public policy by making a pragmatic decision to offer parents a set of “safe” channels that children can watch without concerns about indecency.

The most recent FCC rulings on broadcast indecency caused the WB to edit a new show. The NY Times reports: WB Censors Its Own Drama for Fear of F.C.C. Fines

The pilot episode of "The Bedford Diaries," which concerns a group of college students attending a class on human sexuality, had already been accepted by WB's standards department. After the F.C.C. decision last week to issue millions of dollars in fines against broadcast stations, the network's chairman, Garth Ancier, contacted Mr. Fontana and asked him to edit a number of specific scenes out of the show, including one that depicted two girls in a bar kissing on a dare and another of a girl unbuttoning her jeans.

The network's standards and practices department previously cleared the show to air, believing that it would not run afoul of the indecency regulations.

Even if networks do not edit shows because of indecency regulations often, the constraints imposed by the indecency framework do affect the creative content of television. In some cases, these constraints compel writers to find alternative means of expression.

Battlestar Galactica uses the made-up word "frack" as an all-purpose expletive. The super-cheesy original Battlestar Galactica series, with Lorne Greene, invented the fracking expletive (along with, um, especially creative measures for time and currency.) As a result, though, dialogue on Galactica has its own particular tone and rhythm. If it used the normal English equivalents, the show might sound more like The Sopranos, just with the Jersey accents toned down a bit. Salon.com's Video Dog has a compilation of clips incorporating the word: Motherfracker!

In another way, writers can build on the fact that networks will bleep the worst language. In a first-season episode of Arrested Development, Bringing Up Buster, the writers sent Buster on a 10-second long tirade, where we hear "cause I'm an uptight…[bleeeeeeeeep]…Buster…[bleeeeeeeep]… you old horny slut!" The video shows only the other characters' (Michael, GOB and Lindsay) horrified reactions. The result is more offensive than anything the writers could think up, because those 10 seconds are filled with the foulest language each viewer can imagine, and that language may be different for each imagination.

In Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005 (FCC 06-17, Mar. 15, 2006), the FCC discussed the standard used for determining when broadcasters violate the prohibition on broadcast profanity. The broadcast of "obscene, indecent, or profane language by means of radio communication" is prohibited. 18 USC §1464.

In the Golden Globes II decision, the FCC ruled that "fuck" is profane. Here, the Commission provides a somewhat more comprehensive rationale for the standard it is enforcing and expands its definition of profanity to include the word "shit" and its derivatives.

The FCC will analyze potentially profane language with respect to whether it is so grossly offensive as to constitute a nuisance. Profanity is "denoting certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance." This standard is based on the definition of profanity adopted by the Seventh Circuit in Tallman v. U.S., 465 F.2d 282 (7th Cir., 1972). The Commission finds that the "fighting words" portion of the definition is inapplicable to the broadcast context, since it "appears unlikely that broadcast material would provoke immediate violence between those uttering such words and the audience."

In order to be consistent with the First Amendment, the FCC establishes a presumption that the regulation of profane language will follow indecency regulation and be limited to the "universe of words that are sexual or excretory in nature or are derived from such terms." The presumption of profanity is limited to those certain vulgar sexual or excretory terms are so grossly offensive to members of the public that they amount to a nuisance-- "the most offensive words in the English language, the broadcast of which are likely to shock the viewer and disturb the peace and quiet of the home."

A broadcast of one of the presumptively profane words does not trigger liability where the broadcast is not likely to shock the viewer and disturb the peace and quiet. One of the "rare instances" where this occurs is where the words are seen in graffiti on the side of a train in the background of a scene.

"Fuck" and "shit" are the two words that are presumptively profane. "Bitch," "hell" and "damn" are not profane because they do not refer to sexual organs or activities and are not grossly offensive. Although "ass" and "piss" do refer to sexual or excretory organs or activities, they are not profane because they are not grossly offensive as to amount to a nuisance.

A use of "fuck" or "shit" is not profane only in "rare cases" where such language is "demonstrably essential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance." Even though profane language may have some communicative purpose, the broadcaster must "demonstrate that it is essential to informing viewers on a matter of public importance or that editing the language in question would have a material impact on the network's function as a source of news and information."

The Commission decides that the use of profane words was not essential in "The Blues," directed by Martin Scorsese and broadcast on PBS. Previously, the FCC ruled that substituting other language in a broadcast of "Saving Private Ryan" would have “would have altered the nature of the movie and diminished the power, realism and immediacy of the film experience for viewers." In contrast, the Commission rules that such a substitution would not have materially altered "The Blues," "While we recognize here that the documentary had an educational purpose, we believe that purpose could have been fulfilled and all viewpoints expressed without the repeated broadcast of expletives."

The FCC may decide whether a use of "fuck" or "shit" is profane based on the Commissioners' decision that the broadcast lacks artistic merit or newsworthiness.

Previously: Broadcast Indecency Regulation: The Indecency Standard

Last week, the FCC released its latest three rulings concerning indecency regulations:

  1. Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005. (FCC 06-17, Mar. 15, 2006)
  2. Complaints Against Various Television Licensees Concerning their December 31, 2004 Broadcast of the Program "Without A Trace" (FCC 06-18, Mar. 15, 2006)
  3. Complaints Against Various Television Licensees concerning their February 1, 2004 Broadcast of the Super Bowl XXXVIII Halftime Show (FCC 06-19, Mar. 15, 2006)

With the Omnibus Order, the FCC has attempted to provide broadcasters some guidelines about the scope of the indecency and profanity standards as well as the formula the Commission uses to assess forfeitures. The Commission proposed forfeitures for six programs. Furthermore, the Commission found an additional four broadcasts indecent and/or profane, but declined to propose a forfeiture because those broadcasts occurred between the initial Golden Globe ruling, which indicated that a single, exclamatory use of the word "fucking" would not violate indeceny regulations, and the subsequent ruling that reversed that decision.

The Golden Globes Rulings
During the "Golden Globes Awards" broadcast in January 2003, U2 singer Bono uttered the phrase "this is really fucking brilliant" while accepting an award. In response to complaints, the FCC Enforcement Bureau ruled that such a use-- a single use of the word as an intensifier-- does not rise to the level of indecency. Golden Globes I. This decision was consistent with previous FCC rulings, but led to a vocal critique of this approach to indecency by those members of the public and members of Congress who support stringent regulations on broadcast indecency.

The Commissioners reevaluated the ruling and used the opportunity to reevaluate the Commission’s entire approach to isolated or fleeting broadcasts. The Commission decided that even a single utterance of certain words can make a broadcaster liable for violating indecency regulations. Golden Globes II "While prior Commission and staff action have indicated that isolated or fleeting broadcasts of the 'F-Word' such as that here are not indecent or would not be acted upon, consistent with our decision today we conclude that any such interpretation is no longer good law."

While prior indecency rulings found that isolated and accidental uses of an expletive were not worth sanctioning, under the Golden Globes II standard, a single use of the "f-word" may be considered indecent, because it is "one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language" and its use "invariably invokes a coarse sexual image."

The FCC stopped short of declaring any utterance of "fuck" to be per se indecent. Rather, the Commission based its ruling on a "reasonable expectation" test, made possible by the current technologies available to broadcasters. If a broadcast licensee should have a reasonable expectation of a live broadcast containing indecent or profane speech, the licensee is required to take measures to ensure that a single instance of indecent or profane language does not reach the public airwaves. In addition to finding that the Golden Globes broadcast violated the prohibition on broadcast indecency, the Commission ruled that the broadcast of Bono's statement also ran afoul of the prohibition on broadcast profanity.

This post will discuss only the standard for determining what speech is indecent and not on the other part of the ruling-- where the Commission discusses the forfeiture procedure. Writers and performers, not just broadcasters, are affected by these rules. The standard for indecency has significant implications for whether broadcast can be a medium for discussion of serious issues as well as a direct effect on the form and content of creative works not only intended for broadcast, but that may be repurposed and end up on broadcast at some point in the future.

The Indecency Standard

In order to be subject to indecency regulation, the subject material must fall within the scope of indecent content. That is, the material must "describe or depict sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium."

Violence
Broadcast violence may be disturbing and offensive, but it can not be indecent, because the Commission's definition of indecency extends to sexual and excretory organs and activities. The Commission dismisses a complaint about an episode of "Medium," where, during a therapist session between a husband and wife, "the husband stands up and faces the wife… pulls out a gun from his waist and shoots his wife in the face" can not be indecent, because there is no description or depiction of sexual activities.

So, the most violent scenes from, say, The Sopranos could be broadcast without the threat of indecency fine, so long as the scenes do not contain sexual content or foul language, while a less disturbing and even comic scene could give rise to indecency liability for the broadcaster because of language or the depiction of sexual organs or activities.

Single Use Standard
With the omnibus order, the Commission affirms the Golden Globes II rule that a single use of the word "Fuck" is sufficient to be both indecent and profane. The Commission expands the rule, holding that "a single use of the word 'shit' and its variants" is both indecent and profane.

Because of the "core meaning of the 'F-Word,' any use of that word inherently has a sexual connotation and falls within the first prong of [the Commission's] indecency definition." Because the core meaning of the word shit (and its derivatives) refers to excretory activities, using this same logic, any use of the word falls within the scope of the indecency definition.

Patently offensive
The second prong of the indecency determination is whether the material is patently offensive by contemporary community standards. In determining whether material is patently offensive, the Commission considers "the full context in which the material appeared is critically important." Three factors are cited as the most significant:

  1. the explicitness or graphic nature of the description
  2. whether the material dwells on or repeats at length descriptions of sexual or excretory organs or acticities; and
  3. whether the material panders to, titillates, or shocks the audience

These three factors are not exclusive. The Commission may take into account other relevant considerations. A broadcast does not have to include all three factors to be found indecent. A single inherently sexual or excretory word (e.g. fuck or shit) or brief image may give rise to indecency liability without dwelling on that word or image.

Language
With some exceptions, almost any use of the words "fuck" or "shit" will make broadcasters liable for violating indecency standards. The Commission found public broadcaster KCSM violated indecency regulations by airing part of Martin Scorsese's "The Blues: Godfathers and Sons." The Commission found that the use of repeated foul language was not necessary to express any particular viewpoint of an interview subject in the documentary. Instead, the repeated use of "vulgar, explicit, graphic" language is actionably indecent.

The Commission found uses of the word "shit" and its derivatives-- including "bullshit," "bullshitter," and "owl shit"-- to be actionably indecent.

Where the broadcaster has knowledge concerning the use of the foul word, the broadcaster must take reasonable steps to prevent the broadcast of that word. Based on the Golden Globes II ruling, an exclamatory use of "vulgar sexual and excretory terms" during a live broadcast is actionable indecency. A broadcaster can avoid the indecency violation by simply "airing the show on a delay sufficient to ensure that all offending words are blocked." Children are apparently very likely to watch the broadcast of an awards show, so broadcasters are required to make efforts to avoid airing even spontaneous outbursts of indecency.

The Commission did not propose forfeitures for the Fox broadcasts of the 2002 and 2003 Billboard Music Awards because broadcasters were not on notice that such content would violate indecency standards. These broadcasts occurred after the Commission ruled that an exclamatory use of "fuck" was not indecent, but before the Commission overruled its earlier decision in the Golden Globes II ruling.

Nicole Ritchie in 2003: "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple."
Cher in 2002: "People have been telling me I'm on the way out every year, right? So fuck 'em."

A single use of the word "fuck" is not, however, indecent where the use is not part of the primary expression of the broadcast. Where the word appears on the side of a train, out of focus and in the background, that use is not graphic or explicit. The Commission found that a broadcast of "The Amazing Race" which contained this scene for three seconds was not indecent, because the image is not patently offensive.

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Even numerous and repeated uses of foul language may not be indecent. The Commission received "numerous complaints" about a 2004 episode of "The Oprah Winfrey Show" that focused on the movie "Thirteen," teenage sexual practices and slang. The Commission found that the lengthy discussion and explanation of terms like "a tossed salad" was not indecent. The language was in the context of a segment "The Secret Language of Teens" with an educational purpose (teaching parents about the otherwise innocuous language teens use to describe explicit sexual acts) and not to pander, shock or titillate.

The use of words that are not derived from "fuck" and "shit" will generally not violate the indecency standard. "Hell," "bitch," "slutty" and "damn" do not refer to sexual or excretory organs or activity and are outside the subject matter scope of indecency. "Dick," "dickhead," "ass," "up yours," "my ass is huge," "wiping his ass," "fire her ass," and "pissed off" are not sufficiently vulgar, graphic or explicit to support a finding of patent offensiveness.

Depiction of Sexual Activities
Even where nudity is obscured by pixellation or clothing, on-screen depictions of sexual activity may be sufficiently graphic to be indecent.

An episode of "The Surreal Life 2," included a 10 minute sequence depicting a pool party that Ron Jeremy, "a veteran actor in pornographic movies," threw for "twenty of his friends in the pornographic movie industry." Even though nudity was obscured by pixilation, it is "unmistakable that partygoers are exposing and discussing sexual organs as well as participating in sexual activities" in the full context of the scene, which dwells on sexual organs activities and panders to, titillates and shocks the audience.

"Close-up shots of thong-clad buttocks, breasts and crotches, as well as females fondling their breasts, buttocks and genital areas while they dance, gyrate, and fondle one another in a sexually suggestive manner" in a Spanish-language music video are indecent because they are explicit and graphic, repeated, pandering and titillating.

While female cartoon characters dancing in lingerie falls within the subject matter of the indecency standard, a Simpsons episode containing such images is not indecent. The episode is not sufficiently graphic and explicit. "No cartoon character is shown completely nude, and there are no clear depictions of physical contact involving the cartoon character's sexual organs in the scene."

Where only a mere insinuation of sex is shown, as in a 2005 episode of "Alias" or a commercial for Golden Phoenix Hotel & Casino, such insinuation is not sufficiently graphic and explicit to be considered indecent. Broadcasting a fully-clothed football player who pretends to "moon" the crowd after scoring a touchdown is not graphic or explicit. The celebration is not dwelled upon and the broadcast and is not indecent.

The Spanish language movie "Con El Corazón En La Mano," is found indecent, because it depicts "a woman being savagely attacked and raped in a public restroom." Even though the participants remain clothed, the sexual nature of the scene is unmistakable. The intensity, length and violent nature of the scene make it shocking and disturbing enough to be indecent.

Depiction of Sexual Organs
The Commission finds indecent a 15 minute segment of the "Fernando Hidalgo Show" (a Spanish-language talk show) featuring and dwelling upon a female guest wearing "an open-front dress, with her nipples covered, but her breasts otherwise fully exposed." This segment is indecent because of the length of the segment and the fact that the camera angles and zooms focus on the guest's breasts in order to shock, pander to and titillate the audience. A comedic purpose does not negate a finding of indecency.

Even a brief display of a breast may give rise to indecency liability, if such a display is part of a performance which "discusses or simulates sexual activities" in order to pander to, titillate and shock the viewing audience.

An episode of "Will and Grace" includes a number of scenes where various characters "appear to touch Grace's breast area." Because it is "primarily to enhance her appearance during her date rather to elicit a sexual response," this broadcast is neither graphic nor explicit and therefore not indecent.

Non-sexual references to or displays of sexual organs are not indecent if they do not shock, pander or titillate.

Grabbing a man's genitals to perform a hernia check or to help the man hit the nigh notes while singing the national anthem is not indecent. (It may not be funny, either, but that is, fortunately, outside the scope of the Commission's jurisdiction.) When not used to shock, pander or titillate, repeated uses of the word "penis" and euphemisms for that word are not indecent when discussing the organ in the absence of explicit or graphic descriptions or depictions.

The brief display in "The Today Show" of a man's penis during news footage of a rescue from a flood is not indecent. The overall focus of the scene was on the rescue attempt. The Today Show scene is neither explicit nor graphic and does not dwell upon the images of a sexual organ. This may be distinguished from In re: Young Broadcasting of San Fransisco, where a broadcast featuring "Puppetry of the Penis" was ruled indecent, because that segment focused and dwelled on the performers' genitalia.

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."

This morning, the Senate Commerce Committee held hearings about regulating indecency on television. Sen. Ted Stevens (R-AK) and some of his colleagues seem intent on curbing broadcast and cablecast indecency by new legislation or some extra-legislative means, notwithstanding the fact that extending such regulations to cable and the internet would violate the First Amendment.

IPtelligentsia Podcast: Senate Decency Hearings (Part 1 of 3) (30:33 MP3)

Related links:
Decency: Full Committee Hearing (witness list and archived webcast)

FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000).
Reno v. Am. Civil Liberties Union, 521 U.S. 844 (1997).
Sable Communications v. FCC, 492 U.S. 115, 127 (1989).
Action for Children’s Television v. FCC, 58 F.3d 654 (1995)

Jeff Jarvis, BuzzMachine: Being Heard on Indecency and the FCC: "it is shameful that Brent Bozell is heard — though he does not represent mainstream America — and no one is called on to speak for First Amendment rights in a Senate hearing about government restricting speech."

Comcast Parental Controls
Comcast unveils Family Tier

FCC: Obscenity, Indeceny and Profanity

USA Today: Congress takes issue with family TV tiers

Previously: Videoblog: Arrested Development Indecency Ruling

Wikipedia Woes

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Wikipedia is one of the best sites on the internet-- volunteers compile information about esoteric topics and the entire compilation is a giant guide to the universe. The beauty of the site is that the internet community has created a vast encyclopedia without a single editor.

Nature compared Wikipedia and Encyclopedia Britannica and found that the upstart contains only slightly fewer errors: Internet encyclopaedias go head to head: "The exercise revealed numerous errors in both encyclopaedias, but among 42 entries tested, the difference in accuracy was not particularly great: the average science entry in Wikipedia contained around four inaccuracies; Britannica, about three."

Wikipedia is becoming more frequently cited as a trusted source, despite potential for inaccuracies and often amateur writing and organization (just like this blog!) Evan Brown reports at InternetCases.com: Wikipedia and the courts: "lthough not everyone is convinced that Wikipedia can be trusted to always tell the truth, it is interesting to note that in the past year or so several courts, including more than one federal circuit court, have cited to it to fill in background facts relevant to cases before them. "

The problem with Wikipedia is that the internet community has created a vast encyclopedia without a single editor. Entries can contain factual inaccuracies or present topics in a skewed, biased manner. Wikipedia needs editors. Who chooses the experts for a particular field?

At the Volokh Conspiracy, Orin Kerr finds an interesting relationship between the level of general interest in a subject and the accuracy of that subject's Wikipedia entry: Checking in on Wikipedia's Patriot Act Entry:

I have found Wikipedia entries to be quite helpful when the topic is something esoteric. It seems that when fewer people care about a topic, the better the entry tends to be. When lots of people care about something, lots of people think they know something about it — or at least more people feel strongly enough that they want to get their 2 cents worth into the entry. When lots of people have strong opinions about a topic, even uninformed ones, the Wikipedia entry for that topic ends up being something like Tradesports betting odds on who Bush would pick to replace Justice O'Connor. It's an echo chamber for the common wisdom of the subset of people who use the site more than anything else. And if the views in the echo chamber happen to be way off, then so is the entry.

This suggests that the common wisdom may be entirely backwards. Instead of greater interest leading to greater accuracy, the more people who have a strong interest in a topic, the more likely it is that discredited or inaccurate theories will find their way into that topic's Wikipedia entry. Vocal critics of a widely accepted theory may be more likely than well-respected experts to spend time crafting the Wikipedia entry, so that the end result is that the Wikipedia entry is more likely to reflect the generally discredited minority view.

In an op-ed piece in USA Today, John Seigenthaler discussed A false Wikipedia 'biography': "I had heard for weeks from teachers, journalists and historians about "the wonderful world of Wikipedia," where millions of people worldwide visit daily for quick reference "facts," composed and posted by people with no special expertise or knowledge — and sometimes by people with malice."

Mike Godwin thinks that this problem is not limited to Wikipedia, but is endemic of the Internet as a whole: Wikilibel: "To me, the notable thing about this incident is that it seems to have given John and others doubts about Wikipedia in particular, when in fact the problems he sees are endemic to the Web and the Internet at large."

Unlike posting a random website on the internet at large containing the same defamatory text, posting the information at Wikipedia gives it credibility. The first place most internet users look to assess the credibility of a piece of information is the source. Because Wikipedia contains a growning number of thorough, accurate and well-written entries, Wikipedia as a whole is gaining a reputation as a trusted source for information. According to the Wikipedia entry about Wikipedia, "Articles in Wikipedia are regularly cited by both the mass media and academia, who generally praise it for its free distribution, editing, and diverse range of coverage." An incomplete, incorrect or defamatory article posted to Wikipedia gains from the authority of the accurate entries.

Eric Goldman believes that Wikipedia Will Fail Within 5 Years: "Wikipedia inevitably will be overtaken by the gamers and the marketers to the point where it will lose all credibility. There are so many examples of community-driven communication tools that ultimately were taken over—-USENET and the Open Directory Project are two that come top-of mind."

Unless Wikipedia starts to implement a strong editorial policy, the entire project will become suspect because of entries like the one about Siegenthaler. Wikipedia is at a critical point in that it has enough entries and reputation that by continuing to allow anyone to edit any entry may harm the future development of the project.

As with any controversial topic these days, some lawyers are already preparing a Wikipedia Class Action.

Fair Use in the Internet Age

The House Committee on Energy and Commerce Subcommittee on Commerce, Trade and Consumer Protection held hearings today on Fair Use: its Effects on Consumers and Industry.

  • Mr. Peter Jaszi
    Professor
    Washington College of Law
    American University

  • Mr. Gary Shapiro
    President & Chief Executive Officer
    Consumer Electronics Association
    Arlington, VA

  • Ms. Prudence S. Adler
    Associate Executive Director
    Federal Relations and Information Policy
    Association of Research Libraries
    Washington, DC,
    On behalf of: The Library Copyright Alliance

  • Mr. Jonathan Band PLLC
    Washington, DC,
    On behalf of: NetCoalition

  • Ms. Gigi B. Sohn
    President & Founder
    Public Knowledge
    Washington, DC

  • Mr. James V. DeLong
    Senior Fellow & Director
    IPCentral.Info Progress & Freedom Foundation
    Washington, DC

  • Mr. Frederic Hirsch
    Senior Vice President, Intellectual Property Enforcement
    Entertainment Software Association
    Washington, DC

  • Mr. Paul Aiken
    Executive Director
    Authors Guild, Inc.
    New York, NY

An archived webcast and witness and member statements are available here.

Much of the hearing focused on discussing the merits of HR 1201, The Digital Media Consumers' Rights Act of 2005. HR 1201 would create a fair use exemption to the DMCA prohibition on circumventing digital rights protections schemes (aka DRM). In addition, the bill would authorize the FTC to require manufacturers and retailers to label copy protected CD's.

Most of the witnesses who addressed the panel spoke in favor of this bill and in defense of the fair use right. Jaszi discussed the tradition of fair use within the Copyright Act and noted a number of policy arguments in favor of the fair use rights, particularly the fact that fair use prevents copyright from overwhelming the First Amendment. As the reach of copyright law is constantly expanding to provide more restrictions on uses than ever before, fair use matters.

Shapiro started off discussing how fair use ensures innovation. Without fair use, there would be no VCR, tape recorder, Tivo, or iPod. The information technology industry relies on fair use-- fair use is all that protects inventors from an over-protected world. Because every use of digital content requires making a copy, fair use is especially important and needs to be strengthened. Americans should be able to use their property in any way they choose that does not harm others.

Band also noted that all actions in the digital world require making copies, including viewing web sites and replying to emails. Search engines depend on fair use in order to exist. Each major search engine copies a large portion of the world wide web every month under and opt-out scheme of implied consent. Kelly v. Arriba Soft found that search engine indexing is fair use and limiting this use would hurt the way we find information on the internet.

Adler discussed the relevance of fair use to the mission of libraries. Fair use works well because it is flexible, dynamic and inherently ambiguous. In addition to fair use by library patrons, librarians rely on fair use to create print and electronic reserves and to digitize print works. But when acquiring databases and electronic resources for collections, libraries license, rather than acquire like print material. License agreements are more restrictive than the scope of rights under fair use. Once technological controls are built-in to software, it is impossible for libraries to negotiate exceptions in license agreements.

Adler concluded by stressing the importance of libraries, who, rather tan publishers, archive copies for future uses. Fair use is an important safeguard on our nation's interest in cultural information.

Sohn discussed how fair use rights are slowly being chipped away. Although consumers expect to use content when, how and where they want, the content industries have managed to restrict these uses in the name of preventing piracy. Under the current anti-circumvention law, it is illegal for an individual to copy songs from a copy-protected CD for personal use, shifting video from a DVD to view on an iPod, or removing malicious DRM "rootkit" software from a computer. Sohn asked the representatives to "reject the notion that your constituents are pirates and theives. They do purchase digital products when those digital products are avilable on the market." In addition, she encouraged the representatives to reform the DMCA so that it permits circumvention solely for lawful purposes and clarify and strengthen the DMCA triennial review process.

Public Knowledge thinks that DRM is fine, so long as it is marketplace driven, not driven by legislation. FairPlay works in the marketplace, while Sony's didn't. The government should not mandate technological protection measures. DeLong agreed with applying a marketplace test to technology. But then, DeLong thinks a marketplace will sort out all problems with the copyright economy.

DeLong testified, "We don't talk about the need to balance the interests of automobile manufacturesr and drivers. We assume that we can establish rules promoting markets and allowing the market to sort itself out." Fair uses usually exist when the transaction cost of getting permission is out of proportion to all value to the user and detriment to the creator.
The internet is taking transaction costs out of the system.

DeLong credited DRM with creating marketplace solutions to things that used to have a cost. On the other hand, DRM imposes a cost on performing actions that the law has traditionally considered to be fair uses-- uses either so important to the free spread of ideas or so trivial that the law is not concerned with imposing a cost. These are actions that have no monetary value, yet are to be part of a marketplace? Fair use and free use are not necessarily the same.

Aiken and Hirsch, not surprisingly, spoke against strengthening the scope of fair use.

In both his opening statement and questioning of the witnesses, Stearns focused on seeking a technological solution for the "fair use problem." He thinks that technology should be able to come up with a magic bullet that would absolve Congress of its role in having to make difficult decisions about what activities should be encouraged and which activities prohibited. Stearns asked, "Why not make this the copyright equivalent of a race to the moon? Why shouldn't we be able to technologically limit the number of copies?"

Impressionistic transcripts of the most interesting questions asked by the subcommittee follow in the extended entry.

Google Print and Fair Use

Google Print is the topic that may single-handedly keep the copyright-related blog world in business for the next few years.

Last week, Google added the full text of 10,000 public domain books into the Google Print database. The NY Times reports: Google Adds LIbrary Texts to Search Database: "The additions, from the university libraries at Michigan, Harvard and Stanford and from the New York Public Library, represent the first large group of material to be made available electronically from those libraries, which along with Oxford University contracted with Google last year to let the company scan and make searchable the contents of much or all of their collections."

On Google's corporate blog, Adam Mathes writes: Preserving public domain books: "The world's libraries are a tremendous source of knowledge, much of which has never been available online. One of our goals for Google Print is to change that, and today we've taken an exciting step toward meeting it: making available a number of public domain books that were never subject to copyright or whose copyright has expired."

The following day, Amazon.com announced a program that will sell online access to "any page, section or chapter of a book." These commercial programs will convert the full-text databases used for searching into a way to offer access to full text works as well as a way compensate rightsholders-- like iTunes. Again, from the NY Times: Want 'War and Peace' Online? How About 20 Pages at a Time?: "The idea is to do for books what Apple has done for music, allowing readers to buy and download parts of individual books for their own use through their computers rather than trek to a store or receive them by mail. Consumers could purchase a single recipe from a cookbook, for example, or a chapter on rebuilding a car engine from a repair manual."

This week, the debate even spilled over into my favorite football-related column, Gregg Easterbrook's Tuesday Morning Quarterback, where Easterbrook writes:

Copyright law gives authors and performers the exclusive right to make or authorize copies of their works; the exclusive right to make or authorize copies is, at heart, what a copyright represents.…

[Google] says it will not scan books whose authors send a letter of objection. But if you want to use a copyrighted work, the legal onus is on you to get permission, not on the copyright holder to lodge a protest. Google's position is like saying that if you do not want your house broken in to, it is your responsibility to send a notification to thieves. In this analogy, Google is the thief -- just like in the real world! Remember when Google maintained it would never be the next Microsoft? It's not; Microsoft obeys the law. Remember when Google was going to be a corporate good-guy? Google is fast becoming the next Enron; maybe this is the kind of thing that happens when your founders decide they need an entire Boeing 767 to themselves. Contrast Google's corporate kleptomania to Amazon's decision to offer online books only if authors grant permission. As we enter the digital age, it becomes ever-more important society resists the idea that unaccountable corporations have an unlimited right to seize whatever exists in electronic form. And Google, now that you have declared it is fine to copy intellectual property without permission, surely you won't object if anyone steals your proprietary software and corporate data?

In order to understand the legal implications of the Google Print case, we have to look at what Google is doing-- scanning books into an electronic database for the purpose of indexing.

In Kelly v. Arriba Soft, The 9th Circuit ruled that creating thumbnails of images in a search engine is fair use.

The search engine at issue in this case is unconventional in
that it displays the results of a user’s query as “thumbnail”
images. When a user wants to search the internet for informa-
tion on a certain topic, he or she types a search term into a
search engine, which then produces a list of web sites that
contain information relating to the search term. Normally, the
list of results is in text format. The Arriba search engine, how-
ever, produces its list of results as small pictures.
To provide this service, Arriba developed a computer pro-
gram that “crawls” the web looking for images to index. This
crawler downloads full-sized copies of the images onto Arri-
ba’s server. The program then uses these copies to generate
smaller, lower-resolution thumbnails of the images. Once the
thumbnails are created, the program deletes the full-sized
originals from the server. Although a user could copy these
thumbnails to his computer or disk, he cannot increase the
resolution of the thumbnail; any enlargement would result in
a loss of clarity of the image.

The Google Print service provides essentially the same service as the Arriba Soft image search engine, except that it searches print books instead of digital images.

We must determine if Arri- ba’s use of the images merely superseded the object of the originals or instead added a further purpose or different charac- ter…Although Arriba made exact replications of Kelly’s images, the thumbnails were much smaller, lower-resolution images that served an entirely different function than Kelly’s original images.

The court ruled that create a search engine index is a transformative use that does not supersede the purpose of the original work. The character of a copy used in a search engine index is different than the character of a copy used to read. The search engine use helps to find the book. The intrinsic purposes of the use are different.

The court found that creating a complete copy is necessary to create a service that adds value to the images:

It was necessary for Arriba to copy the entire image to allow users to recognize the image and decide whether to pursue more information about the image or the originating web site. If Arriba only copied part of the image, it would be more difficult to identify it, thereby reducing the usefulness of the visual search engine

Google's book scans are used only for the purpose of creating a full-text index for searching and not for offering text to users. Google is not distributing copies of copyrighted books without permission. For books submitted to the index by publishers, Google provides acess to a couple of pages (with permission of the copyright owner.) For books scanned in under the partnership with university libraries, Google provides access to ~30 word excerpts that contain the user's search term. Google's Screenshots page explains this well.

In UMG Recordings v. MP3.com, the court found that a digital locker service, which created medium-shifted full copies of recorded music, was an infringing use. The defendant's service not only created but distributed complete copies. Like the Arriba Soft thumbnail images, these copies were at a lower resolution/fidelity than the original works. Unlike the Arriba Soft thumbnails, these copies were used to supplant the original use of the works-- for listening.

The key difference between Google and Arriba Soft is that Arriba searches images already on the web in digital form. Google is digitizing the books made available only in print, possibly superseding the market for electronic versions of those same books. Images placed on the web may be thought to be made available with an implied consent to be indexed.

Google Print does not provide access to the complete work and its full copies are used to add value by creating an index, rather than to merely replace the traditional use.

If Google, like Amazon, was providing access to a complete copyrighted work, Google would clearly need permission.

The authors and publishers complaint is based on the fact that Google is copying the entire book without permission in order to create this index. And this question shows why this case is important. Does Copyright law regulate the act of copying or the act of distribution? If making a copy of a complete work in order to create a searchable index, then Google's entire business is threatened. In indexing the web, Google creates complete copies of web pages, unless the web publisher explicitly opts out using the robots.txt protocol. In addition, Google not only creates, but also distributes medium-shifted cache copies of .PDF and .DOC files.

If Copyright law is concerned with regulating the act of copying, then Google may be in trouble, but then so might culture. As a matter of public policy, copyright law might be better served by regulating distribution rather than regulating copying per se. If it is impossible to search the entire web, we lose this wonderful resource. As a matter of public policy, prohibiting intermediate copying will harm public access to information. Just because Google would have the ability to disseminate infringing copies might not mean that it should be prohibited from using infringing copies.

The NY Public Library will hold a live panel discussion, The Battle Over Books: Authors & Publishers Take on the Google Print Library Project, with Allan Adler (Association of American Publishers), Chris Anderson (Wired Magazine), David Drummond (Google), Paul LeClerc & David Ferriero (The New York Public Library), Lawrence Lessig (Stanford Law School), and Nick Taylor (The Authors Guild.) I will liveblog this, if possible.

Pat Schroeder and Bob Barr wrote an op-ed piece in the Washington Times stressing the rights of authors: Reining in Google: "Not only is Google trying to rewrite copyright law, it is also crushing creativity. "

In Forbes, Nick Schultz defends Google: Don't Fear Google: "The way the current copyright law works, I can take a book out from any library, read it and write a review of it for publication on the Web site I edit or in the pages of Forbes.com or anywhere else. This “fair use” of material involves no copyright violation. Readers benefit from learning a bit about the book, authors and publishers benefit from increased exposure. "

Copyright treatise author Raymond Nimmer thinks that the Google project is very different from the Arriba Soft case and that Google's use is not fair use, based mainly on the fact that it is a commercial enterprise: Google Lawsuit Begins; Fair Use On the one hand, this large company desires to make a massive number of copies of other persons’ property for its own profit. On the other hand, the authors and publishers that own the property rights have been given exclusive rights to copy or distribute copies of their works as part of a statutory scheme that intends to provide authors with incentive to create new works."

Another treatise author, William Patry, prefers to apply a market substitute test for fair use: Google Revisited: "So in the Google project, why should we care if there are server copies? The purposes for the copies in connection with the Print Library project is to give people access to knowledge about the existence of the book as well as a tiny amount of text. That is of great help to researchers and hopefully to authors and publishers of the books too. It in no way harms copyright owners unless the project becomes something else, namely a full-text service which then is a market substitute."

I tend to think that this is the core analysis of fair use-- if the use is a market substitute for the original work, it is probably not a fair use.

Jason Schultz was quoted in a segment on NPR's California Report on Google Lawsuits over Images, Books

In Salon.com, Farhad Manjoo has an excellent piece that summarizes the implications of these cases: Throwing Google at the book: "A year later, Google's grand plan to digitize the world's books still seems as fantastical as it did when it was first proposed. Earlier this year, the company started scanning books at libraries, and on Nov. 3 launched an elegant beta version of its book search engine -- but the project faces an uncertain future."

On a tangentially related note, Eric Goldman discusses a different search engine indexing case: Newborn v. Yahoo: "In this case, a web publisher sued Google and Yahoo for contributory copyright and contributory trademark infringement based (apparently) on their indexing the publisher's press releases. I say "apparently" because the plaintiff was unable to articulate a legal complaint or a statement of facts that the judge could understand. Because of the defects in the complaint, the judge granted a motion to dismiss with prejudice, ending the case before it started."

More links and commentary follow in the extended entry.