Policy Blog Entries by Gigi Sohn

If you are a New York Mets fan like me, you’d know what it was like to be a supporter of orphan works legislation. For the past month, every time you thought the Mets would completely crumble and drop out of the baseball pennant race, they would come back. But then, on the very last day of the season, they lost and went home for the year. It was much the same with orphan works. We at PK had given up the orphan works bill for dead in early September when the Senate tried to push the bill through to no avail. Nothing was happening on the House side either. Then, thanks to the stick-to-it-tiveness of Senator Patrick Leahy’s staff, the Senate orphan works bill passed the Senate on Friday September 26.

That was the day Congress was to have adjourned for the year, and had that been the case, that would have been the end of the orphan works story.

Late yesterday, the Department of Justice and the Department of Commerce sent a letter to Senators Leahy and Specter opposing S. 3325, the Enforcement of Intellectual Property Rights Act of 2008. Specifically, the letter says that the agencies are “deeply concerned” that

the proposed legislation will undermine existing intellectual property enforcement efforts by diminishing the effective use of limited criminal enforcement resources and creating unnecessary bureaucracy. It will also improperly micro-manage the internal organization of the Executive Branch.

The letter targets Titles I and IV of the bill as most offensive. Title I, as we have written about numerous times, would give the Justice Department authority to pursue civil lawsuits. Plain and simple, the Justice Department does not want to sped its valuable resources (or your tax dollars) to bring such suits.

For the second straight year, I addressed the EDUCAUSE/Cornell Institute for Computer Policy and Law, held at Cornell’s beautiful campus. The Institute gathers 50+ higher education information technology (IT) professionals – usually campus CTOs, librarians and legal counsels, and teaches them the substantive particulars of IT policy issues and advises them how to be strong advocates.

Later this month I will celebrate 20 years as a public interest communications lawyer. After two unhappy years in a private law firm, I walked into the small and cluttered offices of Media Access Project in August 1988 and never looked back. We spent most of our time in those early days trying to get broadcasters and cable operators to live up to their public responsibilities – impossible work in the laissez-faire Reagan-Bush I years. It was all mass media reform then. There was no technology policy, and the Internet was the stuff of geeks and academics, but the goals we had then were the same as they are today – to ensure a communications system that promotes creativity, civic discourse and democratic self-governance.

As Art discussed yesterday, the expected FCC decision on the Free Press/Public Knowledge complaint against Comcast for throttling Bit Torrent will be groundbreaking precedent. This is because among other things, a Bush Administration FCC will find that the agency has the authority under the Communications Act to protect Internet users from discriminatory network management practices like those used by Comcast.

But nobody should confuse “groundbreaking precedent” with an adequate solution to the problem of broadband service providers using their bottleneck powers to pick winners and losers on the Internet. Yes, the Comcast decision will be powerful and significant. But it will not be enough to check the telco-cable duopoly.

Here is why the Comcast decision has its limits: First, the decision will apply only to Comcast.

After 18 months of waiting and speculation, the FCC late Friday evening approved the merger of XM Satellite Radio and Sirius Satellite Radio. While we still don’t have all the exact details (the Commission released only a detailed press release on Monday), it appears that all of Public Knowledge’s conditions were adopted in whole or in part. To review, those conditions were:

• a la carte or tiered pricing choices;

• a three year price freeze for its combined programming package;

• a 5% set-aside of capacity for non-commercial educational and informational programming;

• a requirement that the new company make the technical specifications of its devices and network open and available to allow device manufacturers to develop, and consumers to use, any device they choose without interference.

Late yesterday afternoon, Sirius and XM filed a letter with the FCC that lays out the “voluntary commitments” the companies will abide by in exchange for the FCC approving their merger. As I predicted yesterday, the commitment to provide 4% of channel capacity set-aside for noncommercial, educational and informational programming falls a good bit short of what PK and others have asked for. While we’re disinclined to fight over 1% of capacity (PK is asking for a 5% set-aside), there are other parts of this and other “commitments” that need change and clarification:

1. Channel capacity, not live, “full-time” channels, should be the metric for the non-commercial set-aside.

The Washington Post is reporting that FCC Chairman Kevin Martin is circulating a draft order that would permit the merger of XM and Sirius Satellite radio subject to six conditions. Under these conditions, the merged entity would

• place a price cap on programming (the AP is reporting that these would be three-year caps);

• offer a la carte programming choices;

• open the standards for satellite radio receivers so that any device manufacturer can make satellite radios;

• set aside 4% of their spectrum capacity (what now amounts to 12 channels) for non-commercial educational programming;

• lease another 4% to groups like minorities and women who are underrepresented in broadcasting; and

Ever since my policy blog and Huffington Post responses to Larry Lessig’s New York Times op-ed on orphan works last week, I have received a large number of fairly unfriendly comments and emails. I won’t quote them here for fear of being sued for copyright infringement (I wish I was kidding). Rather than respond to each one individually, I address the vast majority of the arguments raised in this speech, which I will be giving today at a conference at the University of Maryland University College. I look forward to a new barrage of comments.

I never like to disagree with my friends in public; particularly friends like Larry Lessig, who I greatly admire and who, through his 24-7 work as the first populist copyright reformer, made the existence of organizations like Public Knowledge possible.