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Note: This post was co-written with Rashmi Rangnath, Director of Global Knowledge Initiative, and Staff Attorney
The Administration overturned a decision to ban imports of technology products that infringe patents. This reaffirms the principle that an automatic ban on product importation is not in the public interest.
The public interest has to be a central concern in decisions about technology policy. The Obama Administration, through the United States Trade Representative (USTR), reaffirmed this principle this past Saturday when it overruled a recent International Trade Commission (ITC) decision to ban imports of certain Apple products including the iPhone 4.
The ITC is a specialized court that decides patent infringement cases. If the ITC finds that a product infringes a patent in certain circumstances, then the ITC will, as a matter of course, ban importation of that product. This is exactly what happened as part of the Apple /Samsung litigation: the ITC ordered a ban of the iPhone 4 and other Apple products on the ground that they violated patents owned by Samsung and relating to CDMA encoding and decoding (CDMA is a cell phone network technology used mostly by Verizon and Sprint in the US.)
The TWC and CBS blackout debacle is showing once again that we need to reform our video market. For this to happen, the people have to be vocal and call for reform. The McCain/Blumenthal Cable Bill – S.912 is the first step on that path and it needs more co-sponsors.
Even the most ardent free market mavens will tell you, the current system where broadcasters can withdraw their free broadcast signal and demand payment for retransmitting it has nothing to do with a free market.
It all started with the market distorting gift of free broadcast licenses to use the public airwaves to broadcasters like CBS by the government. In exchange for this and other regulatory goodies, they have one responsibility – provide free programming to the public in their local market. For reasons I won’t get into (but you can read about at length here), Congress in 1992 gave broadcasters the right to demand cable operators pay to retransmit this free broadcasting signal, thus spawning the current consumer-abuse machine known as “retransmission consent.”
CBS crossed a line from permissible hardball tactics to unfair consumer abuse when it blocked TWC broadband subscribers from accessing content on CBS.com. The FCC needs to enforce rules on consumer protection, and Congress needs to fix the broken system of retransmission consent.
Time Warner Cable (TWC) subscribers find themselves suffering through no fault of their own in what has become an all too familiar scenario for cable and satellite TV subscribers. After months of negotiation, CBS and Time Warner Cable could not come to terms for carriage of CBS’ broadcast programming or its Showtime premium cable network. As a result, Time Warner Cable video subscribers can no longer watch CBS or Showtime in several major markets.
But then CBS went further. To put more pressure on TWC, CBS blocked all subscribers to TWC broadband from accessing certain content on its CBS.com website. This punishes not just the Time Warner Cable video subscribers in the markets impacted by the blackout, but also TWC broadband subscribers who live outside the blacked out markets, and those that rely on free over-the-air TV or use a pay TV provider other than TWC (e.g., DIRECTV).
Hearing highlights perceived conflicts on copyright, rather than consensus
On Thursday the House Judiciary committee held the second of two hearings on copyright and technology. The hearings were intended to illustrate the emerging consensus surrounding innovation and intellectual property. For Thursday’s hearing on the role of technology in innovation, the committee assembled a panel of witnesses with a wide range of knowledge on innovative business models and technological progress.
Even when they agree on what they want, Members of Congress excel at division and making a noncontroversial bill sound like the road to ruin.
FACT: Ask every member of the House Judiciary Committee if they support the right of consumers to unlock their cell phones so they can change service providers and they will say yes. All of them.
And yet for two hours Wednesday, Committee members engaged in heated debate and ultimately voted by a small margin to move the simple four page bill (H.R. 1123) sponsored by Rep. Bob Goodlatte out of Committee and to the House floor for consideration and vote. This should not have been a controversial committee mark up, but many Members of Congress continue to be concerned about what this bill means, rather than what it actually does.
The Commerce Department's Internet Policy Task Force (IPTF) is right to delve into the complexity of music licensing in its recent paper on copyright, but we also need to understand how consolidation and business practices shape the licensing landscape if we want to create a more robust and fair music marketplace.
Among many other important issues, the Department of Commerce's recent paper on copyright discusses how copyright is shaping the current state of online music licensing (starting on page 77). To be fair, the paper doesn't purport to be a completely comprehensive examination of what's helping and hindering a healthy music licensing market, but without at least mentioning some of the biggest issues facing the marketplace today our policies might be misguided and ineffective.
First of all, the paper rightly recognizes that the best defense is a good offense, and notes studies crediting the development of legal music services as a leading force in decreasing infringement online. This is a good reminder that everyone--artists, intermediaries, and listeners alike--stand to benefit from a well-designed music licensing system that encourages a robust marketplace.
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