Policy Blog

Assuming the Federal Government opens for business on Thursday (and I am not taking bets), we can expect to see Genachowski taking another substantial step to make good on his pledge to reform how the FCC does business. The agenda for the Commission’s open meeting for Thursday, February 11 lists three items. Two have to do with changing FCC rules to make the agency more open and more streamlined, the third has to do with reforming the E-Rate Program under which schools get money to subsidize broadband.

We can expect that to the extent the press cover this, the focus will go to the E-Rate story. At least people understand about broadband in schools. But for long term difference that matters, the FCC process stories — while phenomenally boring and unsexy — have much broader impact.

The first item is a general “housekeeping” item.

A balanced copyright regime that respects the rights of creators and users is vital for innovation and advancement of learning. The carefully balanced regime that has existed in the U.S. for the past 200 years has allowed libraries to lend books, teachers to educate their students, and innovators to bring products such as the VCR, the TiVO, and the Sling Box to the market. Sadly, agreements such as the Anti-Counterfeiting Trade Agreement and several Free Trade Agreements show that the U.S. has given short shrift to this balance in pursuit of copyright policy abroad. Another process that shapes intellectual property (IP) policy abroad, called the Special 301, is currently underway in the Office of the United States Trade Representative (U.S.T.R.).

Under the Special 301 process the U.S.T.R. seeks input from U.S. copyright, trademark, and patent owners about whether policies and practices in foreign countries deny them adequate IP protection.

Sherwin posted last week about the amended Google Books settlement and our amicus brief expressing our opposition to the settlement as written and our concern that it would lead to a monopoly on providing access to orphan works. The DOJ’s Antitrust Divison has once again weighed in on the settlment (their previous brief is here, with our analysis here). Their conclusions appear to be largely the same as ours: “Although the United States believes the parties have approached this effort in good faith and the [Amended Settlement Agreement (ASA)] is more circumscribed in its sweep than the original Proposed Settlement, the ASA suffers from the same core problem as the original agreement: it is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court in this litigation.”

We are always on the lookout for stories about how threats of copyright lawsuits snuff out interesting uses of the Internet. Along those lines, a recent story in UCLA’s Daily Bruin titled “UCLA Professors Banned from Posting Videos Online” caught our eye. After all, there are at least two sections of copyright law (Fair Use and Section 110(2)) that could be used to protect professors who post videos for educational purposes. However, in the face of a “litigation threat” from the Association for Information Media and Equipment (AIME), UCLA decided to prohibit professors from posting videos to their course web sites.

Comcast and NBC Universal don’t see online video as a competitor to cable. In their world, it’s just something that people use in addition to the bundled package of hundreds of channels that they’re so happy with. It’s an irrelevant little side issue, hardly meriting the big stink we and others have been making about it in the context of the proposed merger.

For those of us who believe that the Internet should remain an open, democratic and non-discriminatory platform, with few exceptions, the last two years have brought a steady stream of bad news from Down Under. First, there were rumblings that Australia was seeking to implement a "three strikes" policy toward those accused of online filesharing. Next, New Zealand came close to instituting its own three strikes mandate, though thanks to the efforts of activists, that deeply-flawed law was struck down at the last minute. Finally, after a number of previous, failed attempts, the Australian government announced that it plans to mandate the use of real-time filtering technologies on public ISPs sometime during the next year.

Just when it seemed like no one in the Australian and New Zealand governments appreciated the damaging effects of such policies, an Australian federal court judge has ruled that the ISP iiNet is not responsible for the actions of its subscribers. In the landmark ruling (full text here), which will likely have ramifications in the U.S. and elsewhere, the judge rebuffs Hollywood's attempt to require iiNet to act as a copyright cop, dealing a blow to three strikes in the process. Let's take a closer look.

My momma always taught me that fibbing was a no-no. My daddy, a lawyer and law professor, would always add that it is real stupid to do so when testifying — especially when you know that so much evidence exists that you are lying that your pants are likely to spontaneously combust under cross examination. So I am somewhat boggled that NBC President/CEO Jeff Zucker would tell Rep. Rick Boucher (D. Va) one thing when he said something completely different in an interview last May. Oopsie!

I guess a CEO’s gotta do what a CEO’s gotta do. So when House Telecom Subcommittee Chairman Rick Boucher asked NBC President/CEO Jeff Zucker about Hulu blocking access to Boxee users last year, Mr.

There have been persistent rumors that the Obama Administration has been "backing away" from network neutrality. These rumors usually start with the unsupported but oft-repeated idea that Susan Crawford was "forced out" by Larry Summers for her "extreme" views on NN and move on from there.

I would say I hoped this put such rumors to rest, but it won't. The artificial manufacture of the "rumors" is part of an overall strategy to marginalize network neutrality as "extreme" even for the "socialist" Obama Administration. To paraphrase Stephen Colbert, it is widely reported that Obama is backing away from his commitment to network neutrality, and this conclusion is therefore 'fact-esque.'

Still, for the curious, here is what Obama actually said about this on February 1, 2010.

Public Knowledge has written (and unfortunately will probably continue to write) a great deal about the problems with “Three Strikes.” Three Strikes is the policy pushed by some content rightsholders and ISPs whereby ISPs cut off users when rightsholders accuse users of illegally downloading content. History has shown that rightsholders are not overly concerned with casting a wide net for copyright infringers, and that users have limited recourse to challenge a false accusation. The story of Cathi “Cat” Paradiso, is another example of how these policies can go horribly wrong. It is also an opportunity to reconsider the term “Three Strikes.”

Paradiso’s story, unfortunately, will sound familiar to just about anyone who is aware of Three Strikes.

Free Culture X, a conference of Students for Free Culture, will be held February 13th at the George Washington University in Washington, D.C. Keynote addresses will be given by Harvard Berkman Center co-founder Jonathan Zittrain, PK President and cofounder Gigi Sohn, and the director of American University’s Center for Social Media, Pat Aufderheide.